12 CIR 50 (1993).


Petitioner, |
Respondent. |


For the Petitioner: Richard L. DeBacker

119 West Koenig

P.O. Box 1545

Grand Island, Nebraska 68802

For the Respondent: Jerry L. Pigsley

800 Lincoln Square

121 S. 13th Street

Lincoln, Nebraska 68508

Before: Judges Kratz, V. Moore, and F. Moore


The Communication Workers of America, AFL-CIO (CWA or Petitioner), have filed a Representation Petition seeking to represent all employees of Hall County, Nebraska (Hall County or Respondent) who are employed as correction officers at the Hall County Jail. There are approximately twenty-five employees in the bargaining unit sought to be represented by CWA.

Respondent Hall County has filed a Motion for Summary Judgment. Hall County argues that since CWA currently represents non-guard employees in the Hall County Public Works Department, Hall County Parks Department and Hall County Assessor's Office it cannot now also represent guard employees of the Hall County Division of Corrections because of the inherent conflict of interest between guard and non-guard employees. In support of its Motion, Hall County filed a Brief, Reply Brief, and the Affidavits of Jerry Pigsley, David Arnold, Janet Pelland, Dan Hostler and Charles Kaufman. In opposition to the Motion, CWA filed a Brief, and the Affidavits of Neal Kelley and Rinda Ueckert.

The Hall County jail was previously operated as a division of the office of the Hall County Sheriff, an elected public official. At that time the Fraternal Order of Police, Lodge #10 (FOP), represented these employees in collective bargaining and the unit consisted of deputy sheriffs, corrections officers, and certain other personnel in the Hall County Sheriff's Department. By resolution of the Hall County Board of Supervisors, supervision of these employees was transferred to the Hall County Board of Corrections. As a result of this reorganization, FOP filed a notice stating that it no longer wished to represent these employees. The correction officers were then decertified by the Commission of Industrial Relations (CIR).

The CWA, who now wishes to represent these employees and has filed this Petition with the CIR, already represents employees in the Hall County offices of Assessor, Parks Department, and Public Works Department (all non-guard employees). All of the Hall County bargaining units represented by CWA would be in the same local of the CWA.

Hall County argues that it is impermissible under Nebraska law for guards and non-guards to belong to the same union or be included in the same bargaining unit. Hall County contends that the congressional concern underlying the prohibition of guards and non-guards belonging to the same bargaining unit or belonging to the same union, was a recognition of the basic conflict, during times of industrial unrest and strikes, between guards and other employees. A more specific conflict exists when guards or police have to cross picket lines of their fellow unionists to fulfill their guard duties. Hall County also argues that the guard/non-guard prohibition is necessary in the event of a labor dispute in the Assessor's office, the Parks Department, or the Public Works Department in order to avoid subjecting the corrections officers to the discipline of those CWA members involved in the labor dispute against whom it is his/her duty to guard, if need be. According to Hall County, the claims of this divided loyalty problem necessitates a finding that the CWA cannot represent the corrections officers since it already represents the non-guard employees in the Hall County Assessor's office, the Parks Department, and the Public Works Department.

CWA contends the summary judgment motion should be denied because there is a genuine issue of material fact as to whether the actual day to day work-related activities of the corrections officers, and their interaction and interrelation, if any, with the employees of Hall County in the three units now represented by CWA, is such as to give rise to the conflict of interest problem alluded to by Hall County and which is the basis for the prohibition against guards and non-guards being represented by the same bargaining agent. According to the CWA, the conflict concerning the possible crossing of picket lines of fellow union members cannot arise in public sector labor relations in Nebraska because strikes, and the picket lines associated with them, are unlawful.

The standard for granting a summary judgment in the courts of the State of Nebraska is set out in Neb. Rev. Stat. ยง 25-1332 (1989): "The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Id. "In considering a motion for summary judgment, the evidence is to be viewed most favorably to the party against whom the motion is directed, giving to that party the benefit of all the favorable inferences which may reasonably be drawn from the evidence." Deutsche Credit Corp. v. Hi-Bo Farms, Inc. , 224 Neb.463, 469, 398 N.W.2d 693, (1987). "Summary judgment is an extreme remedy and should be awarded only when the issue is clear beyond all doubt." Yankton Production Credit Ass'n v. Larsen , 219 Neb. 610, 614, 365 N.W.2d 430, (1985).

Based on the evidence before us, and for the reasons presented by the Respondent, we are inclined to agree that the Hall County correction officers should not be included with the non-guard employees. The Petitioner's argument, however, that there is a significant difference between private employers and public employers with regard to the issue of having guards and non-guards in the same bargaining unit has some validity. Therefore, we have decided to allow the Petitioner to present whatever additional evidence it has to illustrate why in the public sector, as distinguished from the private sector, you can have guards in the same unit with the employees with whom they may have to guard against.

Based on the rule that in considering a motion for summary judgment the evidence must be viewed most favorably to the party against whom the motion is directed, that the party against whom the motion is directed shall be given the benefit of all reasonable inferences, and that a summary judgment shall be granted only when the issue is clear beyond all doubt, we hereby deny Respondent's Motion for Summary Judgment.

All judges assigned to the panel in this case join in the entry of this Decision and Order.

Entered November 26, 1993.