|PAPILLION/LaVISTA SCHOOLS|||||CASE NO. 885|
|PRINCIPALS and SUPERVISORS|||||REP. DOC. NO. 301|
|v.|||||FINDINGS AND ORDER|
|DISTRICT, SCHOOL DISTRICT||||
For the Petitioner: Mr. Robert E. O'Connor, Jr.
2433 S. 130th Circle
Omaha, NE 68144
For the Respondent: Mr. James C. Cripe
1231 Golden Gate Drive
Papillion, NE 68046
Before: Judges McFarland, Cullan and DeLay
The Election Petition filed in this representation proceeding by the Papillion/LaVista Schools Principals and Supervisors Organization ("PLPSO" or "Petitioner"), requests that the Commission determine the appropriate bargaining unit for certain employees of the Papillion/LaVista School District, School District No. 27 ("Respondent" or "District"). Petitioner alleges, and Respondent admits, that Petitioner is a labor organization and Respondent is an employer as those terms are defined by the Industrial Relations Act, Neb. Rev. Stat. §§ 48-801 - 48-842 (1993).
Petitioner requests an election and seeks to represent for purposes of collective bargaining an appropriate unit consisting of certified administrators, excluding administrators who are titled as superintendents or who are on a teacher's salary schedule. Teachers in the school district are represented in a separate bargaining unit by a different labor organization. The twenty-seven school administrators sought to be represented by the Petitioner consist of the following three groups:
Group I - Thirteen School Principals and the Director of Special Services.
Group II - Eight Assistant School Principals, the Special Services Coordinator, and the English as a Second Language Project Director.
Group III - The Challenge Coordinator, the Library/Media Coordinator, and the Director of Business Operations.
Petitioner's position is that all three Groups should be included in one collective bargaining unit. Respondent's position is that Groups II and III should be excluded from the bargaining unit. We find with respect to the determination of the proper bargaining unit that there exists an industrial dispute as defined by Neb. Rev. Stat. § 48-801(7) (1993).
FINDINGS OF FACT
From the evidence presented, we find there has been a history of informal negotiation and discussion of wages, hours, and working conditions between Petitioner and the Board of Education of the Papillion/LaVista School District ("Board"). Since at least 1982, the PLPSO, composed of principals, assistant principals, and directors of programs for the District, worked through the central office administration, and on occasion even met directly with the Board, to negotiate informally wages, salary schedules, length of contracts, and other working conditions. The record shows that the PLPSO, or its predecessor organization, adopted by-laws in the early 1970's and has existed for over twenty years. In February or March of 1994, the PLPSO made a written request to the Board for formal recognition, which the Board declined. The PLPSO filed its Election Petition with the Nebraska Commission of Industrial Relations on September 28, 1994.
The twenty-seven supervisory employees sought to be represented by Petitioner include one high school principal, two junior high principals, ten elementary school principals, three high school assistant principals, one high school assistant principal/athletic director, four junior high assistant principals, one director of special services, one special services coordinator, one English as a second language project director, one challenge coordinator, one library/media coordinator, and one director of business operations. Petitioner and Respondent stipulated that all of these employees have supervisory duties to varying degrees. All of these supervisory employees are state certified administrators and have at least a Master's Degree.
With respect to administrative duties, the supervisory employees generally use a "team approach." The powers of the principals, assistant principals, and directors are diffused among these administrators in a collegial educational environment. Various principals, assistant principals, and directors meet approximately twice a month in regularly scheduled meetings with the superintendent and assistant superintendents. The supervisory employees also meet periodically on numerous committees with central office administration and staff, as well as parents and teachers. The central office administration is composed of the Superintendent of Schools and three assistant superintendents: the Assistant Superintendent of Personnel, the Assistant Superintendent for Curriculum and Instruction, and the Assistant Superintendent for Business Services. They are assisted in their duties by staff members in the central office.
All school principals and the Library/Media Coordinator report to the Superintendent of Schools through the Assistant Superintendent of Personnel. The assistant principals report to their respective school principals. The Director of Special Services and the Challenge Coordinator report to the Assistant Superintendent for Curriculum and Instruction. The Special Services Coordinator and the English as a Second Language Project Director report to the Director of Special Services. The Director of Business Operations reports to the Assistant Superintendent for Business Services.
Performance evaluations are generally conducted on the supervisory employees by the person to whom they report. Principals are required to conduct performance evaluations on their respective assistant school principals. These evaluations may contain recommendations with respect to continued employment. These evaluations will also be used in the future as one of three equally weighted components for the distribution of merit pay.
None of the supervisory employees for at least the past six years has been recommended for termination of employment. Decisions on employment continuation or termination are ultimately made by the Board. Although principals have general supervisory authority over assistant principals, the collaborative team approach is used. The principals do not generally supervise the day-to-day work of their assistant principals. Instead, the assistant principals generally confer with, and report to, the principals with respect to specific problems that arise. The principals do not "micro manage" their assistant principals, and to that extent, the assistant principals are autonomous. Depending on the issue, the assistant principals sometimes interact directly with the assistant superintendents.
A large number of the supervisory employees in the claimed appropriate unit indicated they would like to be represented by the PLPSO. The Clerk's Report to the Commission states that twenty-three of the twenty-seven supervisory employees, or 85.2%, signed authorization cards for the Petitioner to represent them and requested the Commission to conduct a certification election. Furthermore, the President of PLPSO testified that all twenty-seven supervisory employees responded either verbally or by signed authorization card in favor of representation by the PLPSO.
STANDARD OF REVIEW
The National Labor Relations Act specifically excludes supervisors from the definition of employee, and therefore supervisors subject to this Act have no collective bargaining rights. The Nebraska Legislature, however, includes supervisors as employees of political or governmental subdivisions with rights of organization under the Industrial Relations Act ("Act"). Neb. Rev. Stat. § 48-801 (4) and (5) (1993) reads, in relevant part, as follows:
(4) Employer shall mean the State of Nebraska or any political or governmental subdivision of the State of Nebraska...
(5) Employee shall include any person employed by any employer;....
The only statutory limitation that the Nebraska Legislature placed on the type of bargaining unit in which supervisory employees may be included is Neb. Rev. Stat. § 48-816(3)(a) (1993). This statute reads, in relevant part, as follows:
(3)(a) ... a supervisor shall not be included in a single bargaining unit with any other employee who is not a supervisor.
The Act defines supervisor in § 48-801(9) as follows:
Supervisor shall mean any employee having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them or to adjust their grievances or effectively recommend such action; if in connection with the foregoing the exercise of such authority is not a merely routine or clerical nature, but requires the use of independent judgment.
A variety of factors are used by the Commission in a bargaining unit determination. A basic inquiry in bargaining unit determinations is whether a sufficient community of interest exists among employees which is sufficiently strong to warrant their inclusion in a single unit. American Ass,n of Univ. Professors v. Board of Regents, 198 Neb. 243, 261 (1979); IBEW, Local Union No. 1250 v. Panhandle Rural Elec. Membership Ass'n, 11 CIR 32, 33 (1990). In determining the appropriate unit for exclusive bargaining purposes under the provisions of the Industrial Relations Act, the mutuality of interest in wages, hours and working conditions, duties and skills of employees, extent of union organization among employees, desires of the employees, a policy against fragmentation of units, the established policies of the employer, and the statutory mandate to insure the proper functioning and operation of governmental service, are to be considered. Sheldon Station Employees Ass'n v. Nebraska Pub. Power Dist., 202 Neb. 391, 395 (1979). See also IBEW Local 1536 v. Lincoln Elec. System, 215 Neb. 840 (1983). These factors, however, are not the only factors to be considered, nor must each such factor be given equal weight. Sheldon Station, at 395-6. "The factors appropriate to a bargaining unit consideration and the weight to be given to each such factor must vary from case to case depending upon its particular applicability in each case." Id. at 396.
The Nebraska Legislature has enacted a statutory presumption against the fragmentation of bargaining units. This statutory presumption is stated in Neb. Rev. Stat. § 48-838(2) (1993) which reads, in relevant part, as follows:
It shall be presumed, in the case of governmental subdivisions...with no previous history of collective bargaining, that units of employees of less than departmental size shall not be appropriate.
In interpreting that section, the Nebraska Supreme Court has declared as follows:
`It is clear in enacting subsection (2) of section 48-838, the Legislature properly sought to avoid undue fragmentation of the bargaining units....It (undue fragmentation) fosters proliferation of personnel necessary to bargain and administer contracts on both sides of the bargaining table. It destroys the ability of public institutions...to develop, administer, and maintain any semblance of uniformity or coordination in their employment policies and practices.' Clearly, it is the intent of the Legislature...that fragmentation of bargaining units within the public sector is to be avoided.
House Officers Ass'n v. University of Neb. Medical Ctr., 198 Neb. 697, 706-707 (1977) (citation omitted) (emphasis in original). See also Sheldon Station, 202 Neb. at 396.
CONCLUSIONS OF LAW
There is no issue over whether the twenty-seven supervisory employees are supervisors as defined by § 48-801(9). Both Petitioner and Respondent stipulated that all twenty-seven supervisory employees have supervisory duties to varying degrees. The job descriptions and testimony presented at trial establish that each of the twenty-seven administrators is a supervisor as defined by § 48-801(9). There are no administrators who are not supervisors under this statutory definition. We therefore proceed to a review of the relevant factors in determining the appropriate bargaining unit.
Mutuality of Interest in Wages, Hours, and Working Conditions . As specified in the PLPSO by-laws, the PLPSO supervisory employees share the common goals of promoting the welfare and education of students, of working together to further the professional and social needs of its members, and of representing the membership in negotiations for salaries and fringe benefits. To promote these common goals the PLPSO has existed as a loosely-knit organization since at least 1982. During this time, various PLPSO members have met with the Board, and worked through the central office administration and staff, to negotiate informally wages, hours, and working conditions. As a result of these negotiations, the Respondent formulated salary schedules which included such matters as wages, the length of administrator contracts, annuities, and other terms of employment. At present, these PLPSO supervisory employees share the same base salary for determining their relative salaries. These supervisory employees have a similar number (either 220 or 260) of contract days per year. Further, all the PLPSO members generally have the same fringe benefits, such as vacation and annuity benefits.
The collaborative team approach to education has been used by the administration in performing the educational administrative duties of the school district. The PLPSO members have participated in numerous school district and state educational committees with central office administration and staff, and parents and teachers to further the educational policies of the school district.
Respondent contends that assistant principals (Group II) should not be included with principals (Group I), and that the Special Services Coordinator and English as a Second Language Project Director (Group II) should not be included with the Director of Special Services (Group I) in the same bargaining unit because supervisors cannot be in the same bargaining unit with persons they supervise. Respondent acknowledges that the Challenge Coordinator, the Library/Media Coordinator, and the Director of Business Operations (Group III) are supervised by assistant superintendents who are not part of the proposed bargaining unit.
In Supervisory, Managerial, and Professional Employees Bargaining Association v. City of Bellevue, 11 CIR 48, 54 (1991) the Commission found that supervisors cannot be included with other
supervisory personnel whom they supervise. The Commission cited NAPE v. Nebraska Game & Parks Commission, 197 Neb. 178 (1977), for the proposition that supervisory or management personnel may not enter a bargaining unit of rank and file employees and may not retain the same bargaining agent. The Commission then reasoned that when supervisors are being directly supervised by other supervisors in the unit, they become employees as to those supervisors. Bellevue, 11 CIR 52-54.
While supervisors directly supervising other supervisors may in some instances create such a conflict of interest that no sufficient community of interest could exist to include them in the same bargaining unit, it does not follow that any form of supervisory duties of one group of supervisors over another group of supervisors must automatically prevent these two groups of supervisors from being in the same bargaining unit. The extent of supervisory duties exercised is one consideration, but not the only consideration or necessarily the determinative consideration, in assessing whether there is a sufficient community of interest for supervisors to be included in the same bargaining unit.
In American Association of University Professors v. Board of Regents, 198 Neb. 243 (1977), the Nebraska Supreme Court held that department chairman at the University of Nebraska-Lincoln (UNL) should be included in the same bargaining unit with other faculty at UNL over whom they exercised supervisory duties. Department chairman were charged with providing recommendations on such matters as promotions, tenure, and contract termination. Id. at271. Nevertheless, the court found that the department chairmen acted within the spirit of collegiality in the educational environment and concluded that they should be included in the same bargaining unit with the other faculty members. Id. at 271-72. The Nebraska Supreme Court reconfirmed these principles in a subsequent decision, American Association of University Professors v. Board of Regents, 203 Neb. 628 (1979), by finding that chairmen of the department at the University of Nebraska-Omaha (UNO) should be included within the faculty bargaining unit at UNO.
Similarly, in the present case principals are charged with providing performance evaluations of assistant principals. These performance evaluations are used by the Board in making determinations as to continued employment of these assistant principals. These performance evaluations are to be used as one of three equally weighted components for the distribution of merit pay among the administrators. Thus there is a future potential conflict of interest between principals whose evaluations of assistant principals will have a partial influence in determining how merit pay funds are distributed. Because principals share in the merit pay fund, there may be an incentive for principals in conducting evaluations to downgrade assistant principals so the principals may have an increased chance of obtaining more merit pay for themselves.
This potential conflict of interest, however, will exist regardless of whether principals and assistant principals are in the same bargaining unit. Moreover, performance evaluations of assistant principals in the school district have been consistently high. One principal even testified that he always tries to make his assistant principals evaluate themselves. None of the school administrators for at least the past six years has been recommended to the Board of education for termination of employment.
In any bargaining unit there exist potential conflicts of interest. For example, in the present case, more experienced administrators may want to have total years of experience as an administrator be a more important factor in determining salary than educational attainment. Administrators who have a greater length of service with the Papillion/LaVista School District may want to base experience for purposes of salary, not on total years of experience, but on total years of service with this school district. Administrators with large families may stress the importance of health insurance benefits over salary benefits.
Conflicts of interest are inherent in the bargaining process. The nature of collective bargaining is that individual employees sacrifice what each may be able to bargain as individuals in return for the benefit of bargaining as a group. More qualified or talented employees may sacrifice individual benefits so that the entire unit can obtain greater benefits for the group as a whole. By acting through a labor organization selected by the employees, the employees of a bargaining unit have chosen what they believe is the most effective means of bargaining for improvements in wages, rates of pay, hours of employment, or other conditions of work.
Therefore, we find that any potential conflict of interest in the present case is insufficient to outweigh the numerous other considerations establishing a mutuality of interest among the PLPSO supervisory employees. We conclude that the factor of mutuality of interest in wages, hours, and working conditions weighs in favor of the Petitioner.
Duties and Skills of Employees . As school administrators, the PLPSO supervisory employees share a common function of providing administrative direction for the educational needs of the public school students in the school district. All ultimately are under the administrative direction of the Superintendent. With a collaborative team approach, however, they perform assigned responsibilities in cooperation with other administrative staff. There is generally no direct supervision of day-to-day work of the PLPSO supervisory employees, and therefore they have a significant degree of autonomy in their work. They further serve on many school district and state educational committees in promoting educational programs and goals within the school district.
With regard to skills, the administrative positions held by the PLPSO supervisory employees generally require at least a master's degree and an administrator's license from the state, and all of them possess at least a master's degree and an administrator's license. Because of the similarity of educational duties and skills, this factor weighs heavily in favor of the Petitioner.
Extent of Union Organization and Desires of Employees . The only organizational effort of supervisory employees in the school district appears to be the one before this Commission. There is no evidence of any previous formal organizational effort by the PLPSO supervisory employees. There has been, however, an extended history of informal negotiation and discussions between the Board and the PLPSO since at least 1982, and most likely even in the 1970's, when by-laws were in existence for the PLPSO, or its predecessor organization. More importantly, after the Board declined to formally recognize the PLPSO in March of 1994, twenty-three of the twenty-seven supervisory employees (85.2%) signed authorization cards for Petitioner to represent them. All twenty-seven supervisory employees have indicated to the President of PLPSO that they favor representation by the PLPSO. Testimony at trial showed that neither principals nor assistant principals had any objection to being included in the same bargaining unit. This factor clearly weighs in favor of the Petitioner.
Established Policies of the Employer . Once again the past history of informal negotiations and discussions with the PLPSO and the collaborative team approach of administrative staff demonstrate policies of Respondent to bargain informally with the PLPSO and to recognize a degree of unity among administrative staff. This factor weighs in favor of Petitioner.
Policy Against Fragmentation of Units . Respondent's position is that an appropriate unit consists of Group I and that Groups II and III should be excluded from the unit. If these groups are required to organize separately, however, then the appropriate bargaining units would be, Group I with fourteen supervisory employees, Group II with ten supervisory employees, and Group III with three supervisory employees.
The court in Sheldon Station cited language from a prior CIR decision, IBEW v. State, 3 CIR 23 (1975), in finding that fragmented units were inappropriate. This language reads as follows:
The public policy provisions of the Court of Industrial Relations Act (Section 48-802) require this Court to insure the continuous operational efficiency of governmental services. Fragmented units interfere with the continuous operational efficiency of governmental services and should, therefore, be avoided to the extent that it is possible consistent with the preservation of the rights of public sector employees to engage in collective bargaining....'
`We conclude that the limited units requested... herein are not appropriate. We base our decision on the public policy against fragmented units, the object and purpose of LB 1228 to avoid fragmented units, application of the criteria of Section 48-838, and application of criteria established by the Nebraska Supreme Court in the City of Grand Island case, supra.'
Sheldon Station, 202 Neb. at 401 (citing IBEW, 3 CIR at 30-31).
The logic of the IBEW case applies with equal validity in the present case. Before the statutory restrictions against undue fragmentation in the public employment area prescribed by § 48-838(2) can be overcome, there must be strong evidence justifying the need and propriety of such additional division. Sheldon Station, 202 Neb at 399-400. There is no such strong evidence in the present case. The strong public policy against undue fragmentation of bargaining units weighs overwhelmingly in favor of Petitioner.
In consideration of the relevant factors, we conclude that the following constitutes the appropriate supervisory employee bargaining unit:
All school principals, and assistant school principals, the Director of Special Services, the Special Services Coordinator, the English as a Second Language Project Director, the Challenge Coordinator, the Library/Media Coordinator, and the Director of Business Operations, all employed by the Papillion/LaVista School District, School District No. 27.
The Nebraska Legislature has provided that public sector supervisors may organize with other supervisors for purposes of collective bargaining. Neb. Rev. Stat. § 48-816(3)(a) (1993). In fact, the Nebraska Legislature has even provided statutory presumptions that certain firefighter and police officer supervisors shall have a community of interest with other firefighter and police officer employees, and that school administrators employed in a Class V school district shall have a community of interest with teachers and other certificated employees for purposes of joining a single bargaining unit. Neb. Rev. Stat. § 48-816(3)(b) and (c) (1993). If the Legislature does not believe that public sector supervisors having a community of interest should have a right to organize for purposes of collective bargaining, then it is the duty of the Legislature to enact legislation to limit supervisors from organizing with other supervisors. This Commission does not have the authority or power in deciding cases to attempt to legislate such a statutory change. To the extent that the CIR's holding in Bellevue, 11 CIR 48 (1991), that supervisors cannot be included in the same bargaining unit with other supervisory personnel whom they supervise, is inconsistent with this decision, it is hereby overruled.
IT IS, THEREFORE, ORDERED that a secret ballot election be conducted within a reasonable time from the date of this decision within the above described unit.
All judges assigned to the panel in this case join in the entry of this Findings and Order.
Entered April 18, 1995.