13 CIR 342 (2000)

The sole issue in this case is the appropriateness of a proposed bargaining unit. On May 24, 2000, McCook E.S.P. Association (hereinafter the "Association"), filed a petition seeking an election to determine whether the Association should be certified as the exclusive bargaining agent for "all employees of the [Red Willow County] School District [No. 73-0017, A/K/A McCook Public Schools] identified as classified employees, including maintenance, bus drivers, custodians, para-educators, secretaries, and business office staff." Petition, p. 2, ¶ 5.

Red Willow County School District No. 73-0017, A/K/A McCook Public Schools (hereinafter "the District"), filed an Answer on July 5, 2000, which included a denial of the appropriateness of the proposed bargaining unit.(1) On July 25, 2000, the Commission held a Preliminary Proceeding, and the parties entered a Preliminary Proceeding Stipulation waiving their right to a hearing within sixty days of the Petition and agreeing that the Association is a "labor organization" as defined by Neb. Rev. Stat. § 48-801 (Reissue 1998).

The Commission held a Pre-Trial Conference on September 19, 2000, and a trial was held on September 26, 2000, with the sole issue being the appropriateness of the Association's proposed bargaining unit. Both parties submitted trial briefs, and the Commission received the Association's Exhibits 1-17 and the District's Exhibits 101-09. Additionally, the Commission received the Association's Exhibits 18-21 for the limited purpose of determining whether mutuality of interest in wages exists. The parties simultaneously submitted post-trial briefs on October 10, 2000.

Having read the parties' trial and post-trial briefs and having fully considered the evidence presented in light of applicable law, the Commission determines that a single bargaining unit including maintenance, bus drivers, custodians, para-educators, secretaries, and business office staff is not an appropriate unit for collective bargaining.(2) The Commission therefore dismisses the Petition. This ruling is fully explained below.

Based on the evidence of record, the Commission finds the following facts to be true. The District is a Class III school district located in Red Willow County, Nebraska. The City of McCook has a population of roughly 8,000, and approximately 1,580 students are enrolled in the District's K through 12 classes. The District educates students in eight separate buildings, including one alternative education building.

The Association seeks to include the District's maintenance personnel, bus drivers, custodians, para-educators, and business office staff in a single bargaining unit. There are approximately sixty-nine (69) employees in the proposed bargaining unit. These employees are alternately referred to as classified, non-certificated, and/or support staff.(3)  For clarity, the Commission will hereinafter refer to these employees collectively as "classified employees."

Para-educators are generally nine-month employees of the District. (137:8-19; Ex. 108). Their essential functions include correcting papers and recording student grades; assisting in classroom activities; and supervising lunch, activity and playground periods. (Ex. 7). Para-educators are required to possess knowledge of computers and business machines, and be able to work well with children and the public. (Id.). Para-educators are in the Student Support Department and report to the Principal of their assigned building or, in the case of special education para-educators, to the Director of Special Education. (Id.; Ex. 9). Para-educators receive day-to-day guidance from the classroom teachers. (106:21-107:1; Ex. 7).

Most secretaries are either ten or eleven-month employees of the District. (138:9-20; Ex. 107). The secretaries' essential functions generally include keyboarding; typing; filing; answering the phones; greeting visitors; handling building budgets and purchase orders; and preparing reports. (Ex. 7). Accordingly, secretaries are required to possess knowledge of computers and business office machines and be able to interact with the public. (Id.). Secretaries are in the Secretarial/Clerical Department and, depending on their assignment, report either to the Superintendent, a Program Director or a Building Principal. (Id; Ex. 9). Secretaries also receive guidance from the District's Business Manager. (Ex. 7).

The business office staff includes employees performing a variety of tasks such as mail delivery; receipt and delivery of stockroom materials; payroll preparation and processing; and bookkeeping. (Id.). Like the secretaries, the business office staff is in the Secretarial/Clerical Department and they are required to possess knowledge of computers and business office machines. (Id.). The business office staff are headquartered in the senior high school and report to the District's Business Manager. (Id.; Ex. 8 and 9).

Maintenance personnel are twelve-month employees. (139:3-7; Ex. 105). Maintenance personnel have common essential functions such as snow removal and the performance of various maintenance duties as assigned. (Ex. 7). Most of the maintenance personnel also drive activity buses and substitute for drivers and custodians. (Id.). However, there are some duties that require special training (e.g., woodworking, plumbing, vehicle maintenance, and lawn and turf maintenance) and, therefore, are not performed by all maintenance personnel. (Id.). Maintenance personnel are in the Operations Department and report to the District's Maintenance Supervisor, Ron Barnett. (Id.; 106:5-10).

Custodians are also twelve-month employees. (138:21-139:2; Ex. 106). During the school year, the custodians report to the Principal of their assigned building. When school is not in session (i.e., during the summer), the custodians report to a Custodial Supervisor. (105:1-106:4). The custodians are in the Operations Department and, therefore, they may receive guidance from the District's Maintenance Supervisor. (Ex. 7). While their duties may vary slightly from building to building, the essential function of the custodians is to maintain clean and attractive buildings. (Id.)

Bus drivers are part-time, nine-month employees. (137:20-138:8; Ex. 109). The bus drivers are in the Transportation Department and report to the District's Business Manager. They also receive guidance from the Maintenance Supervisor. The bus drivers' primary duty is to transport students to and from school. (Ex. 7). In order to perform this function, bus drivers are required to have and maintain commercial drivers' license (CDL).(4)  (Id.; 48:7-19).

The classified employees' wages, terms, and conditions of employment are detailed in a handbook that is prepared and distributed by the District on an annual basis. ("Classified Employees' Handbook")(37:6-17; Ex. 1 and 11). While the handbook addresses all classified employees, the application of certain provisions varies between classified employees. For example, while the wage rates of all classified employees are set forth in the handbook, there is a separate schedule for each discipline (except employees in the Secretarial/Clerical Department) that only applies to employees of that discipline. Additionally, certain benefits outlined in the handbook, such as sick leave, personal leave and vacation, vary in amounts depending upon whether the employee is a nine-month, ten-month, eleven-month, or twelve-month employee.

Other relevant facts will be discussed in the analysis of the various factors to be considered in a bargaining unit determination.

Neb. Rev. Stat. § 48-838 empowers the Commission to determine representation questions. With respect to bargaining unit determinations, the statute provides that "the commission shall consider established bargaining units and established policies of the employer." Neb. Rev. Stat. § 48-838(2). However, the Nebraska Supreme Court has determined that the considerations set forth in this section are not exclusive, and the Commission may consider additional relevant factors when determining the appropriateness of a proposed bargaining unit. AFSCME v. Counties of Douglas & Lancaster, 201 Neb. 295, 267 N.W.2d 736 (1978); American Ass'n of Univ. Professors v. Board of Regents, 198 Neb. 243, 259, 253 N.W.2d 1, 9-10 (1977)("AAUP"). Indeed, the Court has said "a basic inquiry in bargaining unit determinations is whether a community of interest exists among the employees which is sufficiently strong to warrant their inclusion in a single unit." AAUP, supra; see also, City of Grand Island v. AFSCME, 186 Neb. 711, 185 N.W.2d 860 (1971)("City of Grand Island").

"Factors to be considered in determining whether a community of interest exists are mutuality of interest in wages, hours, and working conditions; the duties and skills of employees; the extent of union organization among the employees; the desires of the employees; the extent of employee interchange; and the policy against fragmentation of units." International Bhd. of Elec. Workers Local 1536 v. Lincoln Elec. Sys., 215 Neb. 840, 842, 341 N.W.2d 340, 341-42 (1983)(per curiam)(citations omitted); see also, Sheldon Station Employees Ass'n v. Nebraska Pub. Power Dist., 202 Neb. 391, 395, 275 N.W.2d 816, 819 (1979)("heldon Station"). The Court has also noted that:

While it is true that these factors are to be considered, it is likewise true that they are not the only factors to be considered, nor must each such factor be given equal weight. The factors appropriate to a bargaining unit consideration and the weight to be given each such factor must vary from case to case depending upon its particular applicability in each case.

Sheldon Station, supra (citations omitted).

Applying the foregoing principles, the evidence in this case does not support a finding of a community of interest between the District's maintenance personnel, bus drivers, custodians, para-educators, and business office staff.

The Association asserts that the requisite mutuality of interest in wages, hours and working conditions is established by the fact that the District has unilaterally established wages, benefits and other terms of employment for the classified employees as a single group through the Classified Employees' Handbook. While the established policies of the employer is a factor to be considered in determining whether employees in a unit share a sufficient community of interest, it is not a controlling factor. Rather, the established policies of the employer must be weighed against the other factors to be considered in determining whether a community of interest exists.

Such was the case in City of Grand Island, supra. The City of Grand Island, as does the Association in this case, argued that a single bargaining unit was appropriate because "insofar as possible, the city ha[d] established uniform policies applicable to all employees on a city wide basis in regard to rules, regulations, wage scales, sick leave, vacations, general leave, hospitalization insurance, grievances and transfers." City of Grand Island, 186 Neb. at 713, 185 N.W.2d at 860. The Court, however, affirmed the Commission's determination that there should be three separate bargaining units. Among the factors establishing a lack of community of interest were the different skills and working conditions of the employees and the lack of interchange between groups of employees in the proposed bargaining unit. Id.

Here, as in the City of Grand Island, the existence of the Classified Employees' Handbook is not nearly sufficient to overcome the substantial differences hereinafter described. Moreover, there was evidence of a conflict of interest between nine-month and twelve-month classified employees regarding personal leave provisions in the Classified Employees' Handbook that resulted in a revision. (65:12-66:5 and 68:14-69:10; 126:10-25).

As noted above, the classified employees' wages are set forth in the District's Classified Employees' Handbook. There is a separate schedule for each discipline except secretarial and business office staff, which is combined. (Ex.1). The Association's Exhibit 18 reveals that these separate schedules overlap to some extent, i.e., the range of pay in a grade on one schedule may be the same as the range of pay in a different grade on another schedule. However, Exhibit 18 also illustrates the substantial variance in wages between disciplines. For example, para-educators have to reach Grade III on their schedule to make the same wages as a secretary in Grade I. Moreover, the wages of maintenance employees in Grade I are greater than the wages in any grade on the para-educator and secretarial schedules and two of the grades on the custodial and bus drivers schedule.(5)  Such differences in wages are indicative of the level of skills required for the disciplines.

As outlined previously, there are differences in the terms of employment for the classified employees. Para-educators are nine-month employees, business office staff and secretaries are generally ten or eleven-month employees, custodians and maintenance personnel are twelve-month employees, and bus drivers are part-time, nine-month employees. There are also differences in duty hours. For example, many para-educators work thirty-five (35) hours or less per week, while custodians generally work forty-five (45) hours per week. (Ex. 106 and 108). Additionally, some custodians work evening shifts. (Ex. 106).

The classified employees do not have common duty locations. Para-educators work in classrooms. (119:21-25). Maintenance employees report for duty at the District's bus barn where they receive their assignments to work both inside and outside schools, in the bus barn, and in the maintenance shop. (113:24-114:6). Bus drivers report to work at the bus barn and perform their duties on their buses. Custodians report to and perform their duties at their assigned schools. Secretaries and business office staff work in administrative or program offices.

There is some overlap in supervision. The District's Maintenance Supervisor supervises maintenance personnel and bus drivers. Secretaries assigned to schools, custodians and para-educators, other than SPED, are ultimately accountable to the Building Principal. However, para-educators receive their day-to-day guidance from the classroom teacher. Moreover, secretaries and business office staff receive guidance from the District's Business Office. Thus, a classified employee's supervision depends, to a large extent, upon their discipline.

The foregoing differences in wage rates, hours worked, and working conditions point toward the conclusion that all classified employees should not be lumped into a single bargaining unit.

The Association acknowledges that the classified employees in the positions at issue perform different duties and possess different skills. In fact, one of the Association's witnesses testified that it would not be appropriate to place all of the classified employees on the same salary schedule because they "do different jobs." (Ex. 101, p. 15). He further testified that the "requirements of each job" are different. (Ex. 101, p. 16). By way of example, he noted that as a driver he has to have a CDL while a "straight para[educator] doesn't" and, as a driver, he doesn't have to have the computer skills that a clerical employee would be required to possess. (Id.).

While fully admitting the differences in classified employees' duties and skills, the Association simply questions why such differences are important. Simply put, these differences establish the lack of community of interest required for a single bargaining unit of classified employees. See e.g., City of Grand Island.

The Association has been in existence since October of 1999, and has held two meetings.

The evidence reflects no prior collective bargaining history between the District and its classified employees. Up to this point, the District has unilaterally established wages, terms, and conditions of employment for its classified employees. However, the record does reveal that a member of the District's Board who serves on the negotiations committee has met with the classified employees from time to time to hear their concerns over matters such as health insurance. (Ex. 12, p. 7-8). Each of the disciplines would select a representative to attend the meeting. (Id.). While these meetings do not evidence the extent of union organization among the District's classified employees, they do suggest that the interests of the classified employees are not mutual.

Nine (9) classified employees testified that they desire to have a single collective bargaining unit for all classified employees. However, the Nebraska Supreme Court stated in Sheldon Station that "[t]he desires of a group of employees standing alone may be of importance to the employer in the manner in which the employer reacts to the employees, but cannot be of legal significance." Sheldon Station, 202 Neb. at 402, 275 N.W.2d at 822. The Court further stated that "[i]f an appropriate unit can be fashioned by simply encompassing those who evidence a desire, then the entire dictates of section 48-838, R.S.Supp., 1976, can be effectively defeated." Id. Thus, this factor must be viewed in conjunction with the other factors. While this factor is clearly in the Association's favor, it is not overriding.

On this point, the Association emphasizes the evidence of classified employees' interaction with each other during the performance of their duties. The District admits the classified employees interact with each other, but points out that they interact equally with the teachers and administrators. However, the relevant factor is not the extent of interaction but, rather, the extent of employee interchange.

The District presented evidence of very little, if any, employee interchange among classified employees. Some maintenance employees drive buses and some custodians perform minor maintenance tasks; however, no business office staff or para-educators (except as noted below) drive buses or perform maintenance or custodial duties.

Maintenance employees may substitute for absent custodians. Additionally, one employee, Robin Johnson, works as a maintenance employee, a bus driver, and a para-educator. However, when he performs duties in each of those disciplines, he is paid on different pay schedules and fills out separate time cards. Thus, he works three distinct jobs for the District. The Association has failed to prove a level of employee interchange between disciplines that should factor in its favor.

This factor must be examined in light of the statutory presumption contained in Neb. Rev. Stat. § 48-838(2) that "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."

In interpreting this statute the Nebraska Supreme Court has held, "It is clear that in enacting subsection (2) of section 48-838, the Legislature properly sought to avoid undue fragmentation of bargaining units." AAUP, 198 Neb. at 259, 253 N.W.2d at 9-10 (emphasis in original).

The Association correctly notes that "[b]efore the statutory restrictions against undue fragmentation in public-sector employment area prescribed by § 48-838(2), R.S. Supp., 1976, can be overcome, there must be strong evidence justifying the need and propriety of such additional division." Pet. Post-Trial Brief at 9 (citing Sheldon Station). However, in this case, because the Association's proposed unit lacks a sufficient community of interest and is not an appropriate unit, the District need not further justify any resulting fragmentation.

The Commission acknowledges this state's important policy of avoiding undue fragmentation of bargaining units and recognizes that finding a single classified employee bargaining unit to be appropriate would avoid multiple units. However, this state's policy against undue fragmentation does not override basic requirements of determining appropriate bargaining units, such as the existence of a community of interest. See, Sarpy County Pub. Employees Ass'n v. County of Sarpy, 220 Neb. 431, 440, 370 N.W.2d 495, 501 (1985)("[W]e have never held and could never hold that artificial units must be created solely to reduce the number of appropriate units."). It is only undue fragmentation that must be avoided. See, AAUP, supra. Any fragmentation caused by this decision is necessary to avoid problems inherent in collective bargaining units that lack a community of interest.(6)

CONCLUSION:

The District's classified employees are part of an important educational team and are necessary to provide a quality education to the District's students. The team also includes the District's teachers, administrators, and other employees. While each of the team's members is vital to the District's success, Nebraska's public labor laws recognize that the team cannot form a single collective bargaining unit. Just as maintenance workers cannot be in a bargaining unit with teachers, maintenance workers cannot be in a bargaining unit with para-educators. Requiring job classes in a single unit to share a sufficient community of interest in wages, terms, and conditions of employment safeguards the interests of both the employees and the employer.

The maintenance employees, bus drivers, custodians, para-educators, and business office staff differ markedly in their wages, working conditions, skills, and duties. Their desire to form one unit and their general common interest in earning high wages and benefits are not sufficient enough to establish a community of interest for collective bargaining purposes. The Commission, therefore, denies the Association's request to lump them into a single bargaining unit.

IT IS THEREFORE ORDERED that the Petition is hereby dismissed.

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

Issued December 29, 2000.

Footnotes:

(1)  The Answer was filed following a joint request for an extension of time.

(2)  Para-educators may also be referred to as para-professionals.  Also, the District refers to the secretaries and clerical workers collectively, therefore, assuming the Association has no objection, the Commission will hereinafter refer to the secretaries, clerical, and other business office employees collectively under the phrase business office staff.

(3)  Apparently, the District's food service is contracted out, so no such employees are involved in this case.  Petitioner's Trial Brief, p. 1.

(4)  Maintenance personnel are also required to have and maintain a CDL.  (Ex. 7).

(5)  It is to be noted that the bus driver grade that has wages in excess of Grade 1 on the maintenance schedule is for special duty drivers. (Ex. 1).

(6)  While the Association has lost its argument for a single unit, the Association may find the establishment of two or three separate bargaining units preferable to the District's apparent argument that there should be four or five separate units.  Likewise, the District may find that it is easier to negotiate with two or three units rather than four or five.  This is an issue best left for further discussion between the parties.  The holding in this case does not forbid future case filings for elections to be held in units later agreed or determined appropriate, it simply holds that a single unit for all classified employees is not appropriate.