12 CIR 1 (1993)


SUBSTITUTE TEACHERS, An | Representation Doc. No. 288
Unincorporated Association, |
Non-Profit Corporation, |
Petitioners, |
DISTRICT NO. 001, a/k/a |
Respondent. |


For the Petitioners:Mark D. McGuire (#12738)

Crosby, Guenzel, Davis, Kessner

& Kuester

134 S. 13 St., Suite 400

Lincoln, NE 68508

For the Respondent:Trudy Saunders-Bredthauer (#17642)

Baird, Holm, McEachen, Pedersen,

Hamann & Strasheim

1500 Woodmen Tower

Omaha, NE 68102

David M. Petersen (#13252)

Baird, Holm, McEachen, Pedersen,

Hamann & Strasheim

1500 Woodmen Tower

Omaha, NE 68102

Before: Judges Kratz, Orr, F. Moore, V. Moore, Flowers (EN BANC)

V. Moore and Orr concurring.


The Omaha Education Association Substitute Teachers and the Omaha Education Association, hereinafter referred to as Petitioners, request that this Commission designate an appropriate bargaining unit of substitute teachers and Order an election for that unit. Petitioners propose that this unit include all substitute teachers who are regularly employed by Douglas County School District No. 001, hereinafter referred to as Respondent.

Respondent says it regularly maintains a list of substitute teachers. This list included 409 names on April 7, 1992, and 541 names by June 3, 1992. Respondent maintains, however, that this group is too diverse and amorphous to constitute an appropriate bargaining unit. These substitute teachers, according to Respondent, are not "employees" under the Nebraska Industrial Relations Act, do not have a continuing or substantial employment relationship with the Omaha Public Schools, and have no reasonable expectation of future employment.


The significant facts in this case are as follows: Substitute teachers are utilized on an on-call basis and are free to accept or decline the assignment. They substitute for absent regular full-time teachers and are paid on a day-to-day basis. They are selected from the list maintained by Respondent and they annually elect whether or not they want their name placed on this list. Many of the substitute teachers are also on lists of substitute teachers for neighboring school districts. The turnover rate for substitute teachers at the Respondent School District was 55.8% in 1990-91 and 54.8% in 1991-92.

Unlike the full-time teachers, the substitute teachers do not have a written contract and if they are called to work they needn't accept the assignment. They select the schools where

they will be available to perform services and they indicate the grade levels they wish to teach. Because of the short notice usually given for substitute teachers, it takes approximately 10 calls before a substitute can be located who will accept the assignment. The work schedules of substitute teachers are erratic. Some will only have a single assignment during the year, while others will have several assignments and work for several months. Some substitute teachers, although their names are on the list, perform no work at all during a school year.

One hundred eleven different substitute teachers received a total of 128 long-term assignments (over 10 consecutive days) during the 1991-92 school year, and 17 substitutes received more than one long-term assignment. During the 1990-91 school year, 91 substitute teachers received a total of 106 long-term assignments during the school year and 15 substitutes received more than one long-term assignment.

Substitute teachers who work for more than 10 consecutive days are asked to attend faculty meetings, attend parent teacher meetings, grade papers and prepare lesson plans, while those who work less than 10 consecutive days are not. The range of days worked by substitute teachers vary from 0 to 166.5 days in 1991-92 and 0 to 169 days in 1990-91. In 1991-92, over 32% of the substitutes worked less than 10 days, and in 1990-91 over 23% worked less than 10 days. Seventy two percent worked less than 50 days in 1991-92, and 68% worked less than 50 days in 1990-91. The school year includes 186 working days.

Of the 541 substitute teachers listed as available in 1991-92, 39 of them did not work at all, 132 worked less than 10 days, 127 worked between 10 and 30 days, 91 worked between 30 and 50 days, 113 worked between 50 and 100 days, and 39 worked over 100 days. Of the 460 substitute teachers who performed substitute teaching in 1990-91, 105 worked less than 10 days, 141 worked between 10 and 30 days, 67 worked between 30 and 50 days, 113 worked between 50 and 100 days, and 34 worked over 100 days.

Substitute teachers are paid on a per diem basis while full-time teachers are paid a salary. Substitute teachers do not receive fringe benefits and the days worked by a substitute teacher do not count towards tenure in the event he or she subsequently receives a full-time teaching assignment with the School District.


Several states have considered this same issue. In New Jersey, it was determined that substitute teachers and nurses were public employees and thus entitled to organize collectively. The members of the unit were those teachers who worked 30 days during one school year and indicated a willingness to serve in the succeeding year. Bridgewater-Raritan Regional Bd. of Educ. , 4 NJPER ¶4201 (1978). In Washington, it was decided that substitute teachers can be included in a bargaining unit if (1) he or she is employed for more than 30 days within any 12 month period ending during the contract or immediately preceding school year and he or she continues to be available for employment as a

substitute teacher, or (2) he or she works or anticipates working more than 20 consecutive work days for an absent teacher and performs most, if not all, of that teacher's regular assignments. Columbia Educ. Assn'n. v. Columbia School Dist. No. 400 , Decision No. 1189 (EDUC, 1981). In Pennsylvania, the substitute teachers are included in a unit with the regular teachers if they have an "expectancy of continued employment." They have an "expectancy of continued employment" if they are hired for a substantial period of time during the semester in issue, and have either a history of employment for a substantial period in the previous semester or the possibility of employment for a substantial period in the next semester. Millcreek School Dist. , 440 A. 2d 673 (1982). In Wisconsin, the Wisconsin Employment Relations Commission held that substitute teachers who worked at least 30 days of the school year were deemed to be regular employees eligible to vote in an election to determine whether substitute teachers should be represented by the Milwaukee Teachers Education Association. Board of School Directors v. WERC , 74 LRRM 3035 (1970). In California, the Public Employment

Relations Board placed substitute teachers in a district-wide collective bargaining unit if they had been employed for at least 10% of the pupil school days during the 1977-78 school year, or 10% of the pupil school days of the current school year up until the election cutoff date. Palo Alto Unified School Dist. , Case No. SF-R-550 (PERB DEC. NO. 84, 1979). In Oregon, the Oregon Employment Relations Board held that substitute teachers whose names were on the school district's master substitute teacher's list should be included in a bargaining unit of substitute teachers if they were employed by the district as a substitute teacher during the 1975-76 school year or subsequent thereto. This decision was approved by the Oregon Court of Appeals in Eugene School Dist. v. Eugene Substitute Teacher Org. , 572 P. 2d 650 (Ore. Ct. App. 1977). In Indiana, a Hearing Examiner for the Indiana Education Employment Relations Board held that "a teacher who signs a temporary contract (for a fixed duration) to fill the position of a teacher, who has become ill during the

year, who is on leave, who for some other reason cannot complete their contract, is a school employee" and entitled to collective bargaining rights. Avon Community School Corp. , 1976-77 IEERB Ann. Rep. 14 (1976).

That this is a difficult and close question is illustrated by what's happened in Michigan. In 1977, the Michigan Public Employment Relations Commission reversed prior decisions and held that substitute teachers occupy a casual and intermittent employment relationship with the school district and that a bargaining unit consisting solely of substitute teachers is, therefore, inappropriate. In The Matter of: Waterford School District , 1977 MERC Lab. Op. 697. See also In the matter of: Lansing School Dist. , 1978 MERC Lab. Op. 453.

Then, in 1986 the Commission again reversed itself and ruled that substitute teachers have "a substantial and continuing interest in the wages, hours, and working conditions of full-time teachers" and therefore should be included in the same unit with the regular teachers. In the Matter of: Taylor Board of Education , 1986 MERC Lab. Op. 779. This same issue is now

pending before a new group of Commissioners.

In New York, the legislature in 1986 passed a law which said that substitute teachers are employees under the Taylor Act if they are given assurance of continued employment sufficient to disqualify them from receiving unemployment insurance benefits during summer recess. Prior to the enactment of this statute, the Public Employment Relations Board for the State of New York,

interpreting a statutory arrangement similar to Nebraska's, concluded that long-term substitutes have sufficient continuity of employment to be included in the bargaining unit with the regular tenure teachers, but per diem substitutes cannot be included in that unit, nor in a separate unit. With regard to the long-term substitutes, the New York Board said they were hired for specific periods of time, determined in advance by the employer, were employed for a sufficient length of time to possess the continuity of employment necessary to warrant coverage under the Taylor Act, and thus were entitled to collective bargaining rights. The Board concluded, however, that "the employment relationship of the per diem substitutes involved in this proceeding is of a casual or temporary nature" and they, therefore, do not have sufficient continuity of employment to constitute an appropriate bargaining unit. Weedsport Cent. School Dist. v. Weedsport Teachers Ass'n. , 12 PERB ¶3004 (1979).

In East Ramapo Central School District and Substitute Teachers Ass'n. of Ramapo No. 2 , 6 PERB 4033 (1973), the New York Public Employment Relations Board said as follows:

In the first place, a significant minority -38-40% - of the substitutes have a de minimis employment relationship, working no more than 10 days of the (minimum) 180 day school year. Further, the majority - at least 70% - of the proposed unit sees service for less than a quarter of the year. Moreover, individual employment patterns will be highly variable, amounting, as a general rule, to one or more temporary employments per school year.


Also absent from the substitutes employment relationship is the important element of continuity from year to year. This Board, for example, requires seasonal workers to demonstrate a 60% rate of return in order to satisfy the continuity factor and I find it reasonable to apply this standard to per diem individuals as well. With just under 50% rate of return from the 1971-72 to the 1972-73 school year, the per diem substitutes herein fall far short of the mark.

In Board of Education of City School District of City of Buffalo and Buffalo Substitute Teachers Ass'n., et al. , 13 PERB 4045 (1980), the Director of Public Employment Practices and Representation for the State of New York ruled that even though some individuals within the per diem substitute teacher group have an employment history that might not indicate casual status, the focal point in resolving the question of representation was the entire group and whether it satisfied the necessary criteria for establishing public employment status.

And in another Buffalo case, Board of Education of City School District of City of Buffalo and Buffalo Substitute Teachers Ass'n., et al. , 14 PERB 4005 (1981), the Director again dismissed a petition by the substitute teachers asking to represent per diem substitute teachers of the Board of Education of the City School District of the City of Buffalo.

Summarizing the afore-described cases, we conclude that the cases in Pennsylvania and Indiana are not applicable to the issue in the instant case; that the Public Employment Relations Board in Michigan is uncertain and unreliable as a precedent for this

issue; that New York, prior to enactment of a specific statute, concluded that it was inappropriate to recognize a unit consisting solely of substitute teachers; that four states (New Jersey, Washington, Wisconsin and California) authorize a separate bargaining unit of substitute teachers, based on some type of eligibility formula; and that there is one state (Oregon) which says all of the substitute teachers constitute an appropriate bargaining unit.

Both parties cited the Iowa case of Iowa Association of School Boards v. Iowa Public Relations Board , 400 N.W. 2d 571 (1987). This case interpreted a statute which established specific guidelines for public employees and it therefore only shows the judgment of the Iowa legislature with regard to what formula should be used to determine whether an employee has sufficient interest in the employer's wages and conditions to become a member of a collective bargaining unit. It has little application to the instant case.

While there is no consistency in the state rulings on the substitute teacher bargaining unit issue, there seems to be a preference for authorizing voting rights for a unit of substitute teachers based on the establishment of some kind of eligibility formula.


The National Labor Relations Board (NLRB or Board) also favors the eligibility formula method for accommodating short term and sporadic employment patterns. In the very recent case of Steiny & Co., NIBEW Local 11 , 308 NLRB No. 190 (1992), the NLRB, in reestablishing its use of a certain formula for sporadic employment in the construction industry, said as follows:

A formula serves as an easily ascertainable, short-hand, and predictable method of enabling the Board expeditiously to determine eligibility by adopting "a period of time which will likely insure eligibility to the greatest possible number of employees having a direct and substantial interest in the choice of representatives." See Alabama Drydock Co. , 5 NLRB 149, 156 (1938).

Referring to the construction industry, the NLRB says "our experience in this industry and others indicates that we should continue to use an eligibility formula." The "other" industries referred to, where the Board "has used an eligibility formula to address short-term, sporadic, and intermittent employment," are the entertainment industry ( American Zoetrope Productions , 207 NLRB 621, 623 (1973)), the oil drilling industry ( Hondo Drilling Co. , 164 NLRB 416 (1967), aff'd, 428 F. 2d 943 (5th Cir. 1970)), the longshore industry ( Seaboard Terminal and Refrigeration Co. ,

109 NLRB 1094 (1954)), the teaching industry ( Berlitz School of Languages of America, Inc. , 231 NLRB 766 (1977)), and the auto shuttling industry ( Avis Rent A Car System , 173 NLRB 1366 (1968)).

The teaching industry case referred to above ( Berlitz ) involved a language school with teachers located at the employer's schools in Chicago, Hinsdale, and Winnetka, Illinois. The teachers serve on an "on-call" basis, the employer advises the teachers that it cannot guarantee full-time employment, and the teachers have the right to refuse assignments without worry of discipline. The NLRB Regional Director ordered an election and included in the unit any teacher who had taught on one occasion in the last six months preceding the issuance of his decision and who had not been terminated for cause, quit voluntarily, or expressed his/her unavailability to teach. The Board disagreed with this formula and changed it to include any teachers who have taught in the last year (instead of six months) on more than one occasion (instead of just once). In revising this formula, the Board said as follows:

To be sure, the above eligibility formula will enfranchise some teachers who have not taught nearly as much as others. However, given the vagaries of the Employer's employment structure, the formula will also not disenfranchise those who have a reasonable expectancy of future employment.

In New York University , 205 NLRB 4, 83 LRRM 1549 (1973), the NLRB held that a combined unit of part-time faculty and full-time faculty wasn't appropriate because part-time faculty did not share a sufficient community of interest with full-time faculty, but a separate unit of part-time faculty members, all of whom held contracts for a fixed period, is appropriate.

In the case of Parsons School of Design , 268 NLRB 1011 (1984), the Board found that a part-time faculty unit was appropriate for the purposes of collective bargaining. Unlike in the instant case, however, the part-time instructors were hired on a yearly or semester basis, had an employment contract, and regularly taught a specified number of student contract hours per week.

In the case of Goddard College , 216 NLRB 457 (1975), 88 LRRM 1228, one issue considered by the Board was whether a separate unit of part-time employees in five faculty groups that had been excluded from the full-time faculty bargaining unit was appropriate for collective bargaining. The Board answered this question as follows:

As for the Petitioner's alternative request to represent part-time employees in these excluded faculty groups in a separate bargaining unit of part-time employees, we find that the facts contained in the record before us are insufficient to establish a community of interest between these excluded groups of employees, and one another. To the contrary, the record establishes that these employees are different heterogeneous groups of people whose only common identification is their part-time work for the Employer. In our view, such an identification, in light of their different wages, hours, responsibilities, locations, and conditions of

employment, does not establish a community of interest sufficient to warrant their being grouped together in a single bargaining unit.

Thus, although the NLRB uses the formula approach for sporadic employment, and has determined that a unit of part-time teachers can constitute an appropriate bargaining unit, we have not discovered where it has made such a determination in any case like the instant case. All of their part-time teachers who are determined to belong in an appropriate bargaining unit, unlike the substitute teachers in the instant case, appear to have promised employment.


Substitute teachers are short term and sporadic. They have also been described as ephemeral and amorphous. Do they as a group, either entire or subdivided, deserve the right to be represented in collective bargaining? Maybe. While this commission is divided on the question of whether substitute teachers can ever form a bargaining unit (see concurring opinions of V. Moore and Orr), we all agree that the evidence in this case falls short of authorizing a bargaining unit for the Omaha Education Association Substitute Teachers.

The Petitioners ask us to include all the substitute teachers in the unit. We clearly cannot do this because we would be enfranchising teachers who have either not worked at all for

the employer or who have worked so infrequently as to have little continuing interest in the employer's terms and conditions of employment. Thirty nine of the substitute teachers did not work at all during the 1991-92 school year, and 132 worked less than 10 days.

Respondents ask us to reject any unit of substitute teachers. This may deny bargaining rights to employees who have a valid interest in the terms and conditions of employment. Thirty nine teachers worked more than 132 days in 1991-92 and 113 worked between 50 and 100 days. While these 152 substitute teachers would seem to have a valid interest in the terms and conditions of employment for the year 1991-92, there is no evidence to show that they would work a single day during the 1992-93 year and therefore have a valid interest in the terms and conditions of employment for that following year. If there were substitute teachers who had consistently worked for a significant number of days in the past and were expected to work for a significant number of days in the future, those teachers should be authorized to join together in a collective bargaining unit. We don't have that, however, in the evidence in this case.

Neither of the parties suggested the formula approach to the determination of an appropriate unit, but if we were to conclude there should be a bargaining unit of substitute teachers, we

would use that method. The formula method, however, has some flaws when applied to the evidence in the instant case. If we used the 30 day formula guideline, as was most often used by the states which authorized a bargaining unit for substitute teachers, and applied it to the 1991-92 school year, we would enfranchise 243 substitute teachers and disenfranchise 298. It seems likely, however, that some of the enfranchised 243 who worked at least 30 days in 1991-92 would not work 30 days in the 1992-93 school year and some of the disenfranchised 298 who didn't work 30 days in 1991-92 would work at least that number of days in 1992-93. There is nothing in the evidence, or arguments, which illustrates how we can sort this out. The dissenting opinion in the California case ( Palo Alto ) says that "although some substitutes work year after year, substitute lists are subject to constant fluctuation." The evidence in the instant case shows, also, that the substitute lists are subject to constant fluctuation.

Under the evidence presented in this case, we don't see any method for designating a consistent group of substitute teachers based on the applicable bargaining unit criteria of interest in wages and conditions of employment, expectancy of reemployment, and community of interest. We don't find any basis for concluding that a substitute teacher who works 30 days in 1991-92

will also work 30 days in 1992-93, or even a single day. From the evidence we have, there is no more a likelihood that a teacher will again work at least 30 days as there is that he/she will not work at all. The New York Public Employment Relations Board, prior to the statutory change, said "also absent from the substitute's employment relationship is the important element of continuity from year to year" ( East Ramapo ). Substitute teachers only serve temporarily until the regular teacher returns. In the instant case, Petitioner has failed to show that there is year to year continuity for all or some of its members.

In Pennsylvania, the Pennsylvania Labor Relations Board included substitute teachers in the regular teacher bargaining unit if they had an "expectancy of continued employment," which was defined as teachers who are hired for a substantial period of time during the semester in issue, and have "the possibility of employment for a substantial period in the next semester"

( Millcreek ). Our problem with the application of this guideline to the instant facts is that we don't know which teachers have the "possibility of employment for a substantial period in the next semester." The fact that they worked 100 days in 1991-92 doesn't indicate or show that they will work at all in 1992-93. One basis for the position taken by the New York Public Employment Relations Board was that substitute teachers cannot possess a reasonable expectancy of continued employment since they are teaching in positions encumbered by professional employees who have an absolute right to return upon expiration of their leave.

After reviewing all similar cases, and recognizing that there are more state public employment relations boards that authorize bargaining units of substitute teachers (using the formula approach), than do not, we have concluded that there is no showing in this case of an expectancy of continued employment for any specifically identified group of substitute teachers. Therefore, it is not possible to equitably designate an appropriate unit for substitute teachers and the Petition is dismissed.

Entered January 28, 1993.

Verne Moore, Jr., Concurring:

I concur in the decision that the petition filed herein be dismissed. I do not agree with that part of the opinion which states "---if we were to conclude there should be a bargaining unit of substitute teachers we would use this (formula) method."

I do not believe the answer is a formula based on past performance. These teachers as a group do not have a regular and substantial employment nexus nor expectation of regular employment. They are casual and temporary employees and their work history in past years does not change that fact.

I do not believe that a teacher has a reasonable expectation to work for a significant number of days in the future solely because he/she has worked a significant number of days in the past; nor do I believe it is reasonable to assume that such expectation exists. The Commission should not speculate as to facts which might create a reasonable expectation for employment in the future.

Even though some individuals within the group had employment histories that might not indicate casual status the question of representation within the group should not be based on assumption. The employment relationship as presented to the Commission in the present case is too casual to carry the right of representation.

In any event, I am not persuaded that a formula for representation based solely on past work history can create an employment relationship which would justify a bargaining unit of substitute teachers.

Jeffrey L. Orr, Concurring:

I join in the concurring opinion of Judge V. Moore. There simply does not exist an employer-employee relationship certain enough to warrant the right of representation. Some states have set up formulas for the purpose of allowing substitute teachers to organize and have the right of representation. I believe that any attempt to artificially create a formula would have to, by necessity, be solely based on speculation. There is absolutely no way to know with any degree of certainty if any one past year substitute will teach the next year, let alone teach the minimum days established by the formula.

Also, one must understand that substitutes do not have any responsibility to teach at any given time or at any given place. Substitutes may submit their names to several different districts at the same time. There does not exist any contractual responsibility between the district and the substitute.

Without a substantial change in the current relationship between the district and the substitutes, I do not envision the right of representation ever existing.