13 CIR 400  (2001)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Filed October 19, 2001

APPEARANCES:

Marcy Delperdang (hereinafter, "Petitioner"), a secretary employed by the South Sioux City School Community School District (hereinafter, "District"), filed a Petition on May 16, 2001, seeking to amend the certified bargaining unit consisting of:

All custodians, maintenance workers, print shop workers, secretaries, and food delivery drivers, employed by the South Sioux City Community School District, excluding the superintendent of buildings and grounds and those secretaries assigned to the central office who report directly to the superintendent of schools or the business manager/administrative assistant.

(the "Bargaining Unit").

Specifically, Petitioner claims the secretaries in this Bargaining Unit do not share a community of interest with the custodians, maintenance workers and food delivery drivers in the bargaining unit. Furthermore, Petitioner contends that the secretaries do not share a sufficiently strong mutuality of interest in wages, hours, and working conditions with the other members of the Bargaining Unit to warrant their inclusion in a single unit.

The United Electrical, Radio and Machine Workers of America (hereinafter, "Respondent" or "UE Local 801") filed an Answer to the Petition on June 6, 2001. The Answer asserted that the previously certified bargaining unit was appropriate and that severing the secretaries from the existing Bargaining Unit would create undue fragmentation.

The Respondent alleges that there has not been a substantial change in the job duties of the secretaries to warrant their severance from the Bargaining Unit. Furthermore, Respondent contends that it has not breached its duty of fair representation of the Bargaining Unit and that as the single representative it can give fair attention to all its members. Finally, the Respondent contends that all members of the Bargaining Unit continue to share a community of interest.

The Commission of Industrial Relations (hereinafter, the "Commission") conducted a Preliminary Proceeding on June 28, 2001, and held a Pretrial Proceeding on August 9, 2001.

The Trial was held on August 13, 2001 and the briefing schedule was completed on September 4, 2001.

The Commission, upon consideration of the testimony of witnesses and Exhibits in evidence, finds that the secretaries do not share a community of interest with the custodians, maintenance workers, and food delivery drivers in the Bargaining Unit and, therefore, the Bargaining Unit should be amended to exclude the secretaries.

The Commission finds the following facts to be true. The District is located in Dakota County, Nebraska. The community’s population surrounding the District is roughly 10,000 and includes approximately 3,300 students from both Dakota City and South Sioux City who are enrolled in the District’s kindergarten through 12^th grade classes. The District educates students in nine (9) separate buildings, including one special education building. In the nine separate buildings, the District employs 500 staff members of which approximately 250 are certificated staff and approximately 250 are non-certificated or classified employees.

The Bargaining Unit was first certified by the Commission on April 6, 1996, pursuant to a written stipulation between UE Local 801 and South Sioux City Community Schools, District No. 11.

Currently, the UE Local 801 consists of approximately forty-seven (47) dues paying and non-dues paying members (hereinafter, "members"). Sixteen (16) of the members are secretaries, four (4) of the members are maintenance workers, and approximately twenty-seven (27) are custodians. One of the custodians is also a food delivery driver. There are no print shop workers currently in the District.

The secretaries’ essential job functions generally include computer literacy; typing; answering phones; greeting visitors; supervising lunchrooms; assisting teachers and principals; maintaining student records; sending/receiving correspondence; recording grades; handling budgets; supervising insubordinate students; and caring for sick children. The secretaries do not perform any of the duties of custodial and maintenance personnel. In order to become employed by the District, secretaries must have a high school diploma or GED. Secretaries must have knowledge of computers and bookkeeping as well as personal skills because they interact routinely with the public and with parents. Secretaries do not receive an allowance for uniforms. The majority of secretaries work a ten-month contract with the District. Their work week ranges from approximately thirty-five (35) to forty (40) hours a week and the secretaries typically report to work around 7:30 a.m. and leave work around 4:00 p.m. Secretaries receive one paid holiday. Secretaries report to, are evaluated by, and can be fired by their respective building principal.

Maintenance personnel perform general maintenance, plumbing, carpentry, or electrical work for the District-owned facilities. Maintenance personnel do not perform any of the secretaries’ job duties listed above. In addition to the general duties that maintenance personnel perform, they must also possess certain specialized skills such as plumbing, electrical or carpentry work to be hired by the District. Maintenance personnel must have a high school diploma or GED, plus the expert technical skills in their specialized area. Once employed, maintenance personnel receive a uniform allowance of fifty ($50) dollars a year. On a typical day, maintenance personnel report to the maintenance office in the junior high school at approximately 6:30 a.m. to go over the general maintenance needs of the school. Their workweek is forty-five (45) hours, five hours of which are overtime, and they receive nine paid holidays during their contract year. The maintenance personnel are twelve-month employees. Maintenance personnel will also on occasion fill in for custodians. Maintenance personnel report to and are evaluated by the Director of Buildings and Grounds, Jeb Archer.

The custodians’ essential job functions are snow removal; unlocking doors; turning on lights; mopping; dusting; sweeping; and conducting general custodial maintenance as needed. A custodian’s essential job function is to keep their building clean and comfortable. Custodians do not perform any of the secretaries’ job duties listed above. Custodians must have a high school diploma or GED and must demonstrate aptitude or competence for assigned responsibilities to be hired by the District. Custodians are required to have technical skills to use various cleaning products and physical skills for lifting and cleaning. Once employed, like the maintenance personnel, custodians receive a fifty ($50) dollar uniform allowance to provide them compensation for the clothes they damage because of the nature of their job duties. Typically, custodians report to their assigned school at 6:00 a.m. At different times during the year, custodians stay late into the evening to provide their services for a school event. Custodians are also twelve-month employees like the maintenance personnel. Each custodian’s workweek is forty-five (45) hours, five (5) hours of which are overtime. Custodians receive nine paid holidays. Custodians report to and are evaluated by the Director of Buildings and Grounds, Jeb Archer. The District has one custodian who also is a part-time food delivery driver. This part-time food delivery driver/custodian is paid at the rate custodians are paid in the District.

All UE Local 801 members have their wages, terms and conditions of employment detailed in both the Handbook prepared and distributed by the District on an annual basis (the "Handbook") and the current negotiated agreement between the Respondent and the District. While the Handbook addresses all classified employees, the Handbook separates the UE Local 801 members based upon their job classification. The provisions in the Handbook differ with respect to job classification to vacation time, uniform allowances, who can authorize bereavement leave, and legal holidays.

Between 1996 and the time Petitioner filed the petition, the Respondent has negotiated three separate bargaining agreements with the District effective July 1, 1996 through June 30, 2001, which govern the wages, terms and conditions of employment for the UE Local 801 members. The wage provisions in each of these three bargaining agreements differ according to job classification.

In the 1996-1997 negotiated agreement, the secretaries received a $.43 per hour raise, whereas the custodians and maintenance personnel received a $.30 per hour raise. In the 1997-1999 negotiated agreement, the secretaries received a $.28 per hour and a $.30 per hour raise for the respective years, whereas the custodians received a one time longevity increase of $.10 in addition to a $.28 per hour raise in 1997-1998.

The end result of the 1999-2001 negotiated agreement was an across the board raise of $.65 per hour in the 1999-2000 contract year and a $.35 per hour raise in the 2000-2001 contract year for all classified staff in UE Local 801. However, the Petitioner and the Respondent presented conflicting testimony at trial, regarding the compensation packages offered during or after the 1999-2001 negotiated agreement.

At trial, Dave Hawkins, Assistant Superintendent of the District, testified from what he had been told that the District between 1999 and 2001 offered the secretaries a $1.00 per hour raise because the District felt that it was no longer competitive with the current market rate for other comparable school districts as well as the local private industry. Greg Cross, the International Representative of the UE Local 801, testified from his own knowledge that the secretaries were offered a $.75 per hour raise and that the custodians and maintenance personnel were offered a $.50 per hour raise by the District. It was undisputed that the proposed raise was brought before the Bargaining Unit and the offer was rejected because the majority of members felt that the raise should be equal for all members. The Commission finds the testimony of Mr. Cross to be more reliable and concludes that the secretaries were offered a $.75 per hour raise by the District, but the union members rejected this offer because they desired an equal across the board increase. The secretaries that were dues paying members testified that they felt the other members within the UE Local 801 were not listening to their bargaining concerns as a result of the outcome of this negotiating session. Due in part to that outcome, all dues paying secretary members stopped paying dues as of approximately August of 2000. There are currently no secretaries that are dues paying members of the Respondent.

Also noteworthy on the issue of community of interest is the fact that the wage data presented into evidence by Respondent contained one sheet for the wages of the secretaries and another sheet for the wages of the custodial/maintenance personnel.

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

Rule 12 of the Rules of the Commission of Industrial Relations allows a party to file a petition to amend an existing bargaining unit. The Commission can amend bargaining units based upon the implied authority to determine questions of representation under NEB. REV. STAT.  § 48-838. In determining the appropriateness of an existing collective bargaining unit, the statute provides that "the Commission shall consider established bargaining units and established policies of the employer." NEB. REV. STAT. § 48-838(2). In analyzing § 48-838, the Nebraska Supreme Court has determined that the requirements in the statute 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"). These additional factors are:

…the mutuality of interest in wages, hours and working conditions, duties and skills of employees, extent of union organization among employees, the desires of employees, a policy against fragmentation of units, the established policies of the employees, and the statutory mandate to insure proper functioning and operation of governmental service, are to be considered.

 

International Brotherhood of Electrical Workers Local 1536 v. Lincoln Electrical System, 215 Neb. 840, 842, 341 N.W.2d 340, 341-42 (1983) (per curium) (citations omitted); Sheldon Station Employees Ass’n v. NPPD, 202 Neb. 391, 275 N.W.2d 816 (1979). In considering the factors established by the Nebraska Supreme Court, the Commission also carefully considers the public policy surrounding collective bargaining agreements.

In Nebraska public sector labor law, the public policy as expressed in § 48-802 is "the continuous, uninterrupted and proper functioning and operation" of governmental service. This public policy underpins the Commission’s desire to preserve a bargaining unit’s stability and continuity, absent a reason for disruption or alteration of the status quo. This policy consideration is underscored by the Nebraska Supreme Court’s holding in Sheldon Station that the Commission "shall consider established bargaining units and established policies of the employer." Sheldon Station, 202 Neb. at 396. In determining the appropriateness of an existing collective bargaining unit, the Commission must consider the evidence while giving due regard to this deeply rooted public policy.

The burden of proof is on the party seeking modification of an existing collective bargaining unit to establish by a preponderance of the evidence facts which demonstrate that it is entitled to the modification sought. See Nebraska State Patrol v. State Troopers Ass’n of Nebraska, 9 CIR 37 (1987); See also F.O.P. Lodge 41 v. City of Scottsbluff, 13 CIR 236 (1999).

The Respondent asserts that since the Commission has already previously certified the Bargaining Unit, the standard of proof for the Petitioner is much higher than in a case where the Commission is making its initial determination of an appropriate bargaining unit. The Respondent relies upon the standard used by the National Labor Relations Board. See Red Coats, Inc., 328 NLRB No. 28 (1999); Washington Post Co., 254 NLRB 168 (1981); Fraser & Johnston Co., 189 NLRB 142, 151 fn. 50 (1971). We find that there is nothing in previous Commission decisions that would support such a finding. In the past, the Commission and the Nebraska Supreme Court have found that decisions under the National Labor Relations Act were helpful but not controlling upon the court. City of Grand Island v. AFSCME, 186 Neb. 711, 185 N.W.2d 860 (1971) ("City of Grand Island"). We find that NLRB case law is not helpful here where Nebraska case law has developed differently.

In the present case, the Commission certified the stipulated bargaining unit without a hearing on whether the unit was appropriate. Consequently, the Petitioner has the burden of proving that the secretaries do not share a community of interest with the other members.

The Nebraska Supreme Court has stated that the 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, 198 Neb. at 261-262; see also City of Grand Island, 186 Neb. at 714; McCook E.S.P. Ass’n v. Red Willow County School District No. 73-0017, A/K/A McCook Public Schools, 13 CIR 342 (2000) ("McCook").

"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 employee interchange; and the policy against fragmentation of units." International Bhd. of Elec. Workers Local 1526 v. Lincoln Elec. Sys., 215 Neb. 840, 842, 341 N.W.2d 340, 341-42 (1983) (per curium) (citations omitted); see also Sheldon Station, 202 Neb. at 395. In Sheldon Station the Court, in referring to the factors to be considered, stated:

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.

Id. (citations omitted).

The Commission has followed the Sheldon Station decision in determining the appropriateness of classified employees of a school district. See McCook, 13 CIR at 342. In McCook, we stated that requiring job classifications 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.

Using the reasoning we set forth in Sheldon Station and McCook, we shall determine whether or not the secretaries share a sufficient community of interest with the rest of the bargaining unit members.

The Nebraska Supreme Court has held that while the established policies of the employer should be considered in determining whether a community of interest exists in a single bargaining unit, established policies of the employer are not a controlling factor. AAUP, 198 Neb. at 259. Instead, the established policies of the employer should be considered as one factor and must be weighed against other factors in determining whether a community of interest exists and we will do so here accordingly. See Id.

After careful examination of the District’s Handbook, it is clear that the Handbook treats custodial/maintenance personnel and secretarial staff differently. The provision in the Handbook regarding bereavement leave authorizes the Superintendent of Buildings and Grounds to excuse a custodian/maintenance employee whereas the principal is authorized to excuse secretarial staff. The Handbook provides an allowance of $50.00 for work uniforms for custodians and maintenance personnel. There is no such provision for secretaries within the Handbook. The Handbook separates the custodial/maintenance personnel and the secretarial employees into two categories to explain the allowance and approval of vacation time. The Handbook has two provisions for legal holidays, separating the secretaries from the custodial/maintenance personnel.

Testimony at trial indicated that the District has historically treated the secretaries and the custodial/maintenance personnel differently. Prior to the UE Local 801’s certification, the Handbook dealt with the custodial/maintenance personnel differently than the secretaries for bereavement leave, uniform allowances, vacations, and salary schedules. After the certification of the Respondent, the District continued to treat the secretaries and custodial/maintenance personnel separately and differently. The District offered the secretaries a larger raise than the custodial/maintenance personnel between 1999-2001. It is clear that the established policy of the employer is to treat the secretaries in UE Local 801 differently than the custodial/maintenance personnel within the Bargaining Unit.

The Nebraska Supreme Court in Sheldon Station held that mutuality of interest in wages, hours, and working conditions must be given equal weight in determining whether a community of interest exists. Sheldon Station, 202 Neb. at 395.

The Petitioner presented considerable evidence that the classified employee’s wages were set forth in separate schedules. One schedule describes wage rates for the building secretaries and the other schedule describes wage rates for the maintenance and the custodial personnel. Exhibits 22, 23 and 30 illustrate the substantial difference in rate of pay between the two groups of employees. The average salary of a secretary is $6.35/hour for 1995-1996 with a high of $7.76 and a low of $5.10. The average salary for custodial/maintenance personnel is $8.13 for 1995-1996 with a high of $11.52 and a low of $6.26. The average annual salary for a secretary is $9,571.03. The average annual salary for custodial/maintenance personnel is $20,082.40. The difference in average annual salary between the secretaries and the custodial/maintenance personnel in 1995-1996 was $10,511.37, making the secretaries annual salary less than one-half the annual salary paid to the custodial/maintenance personnel. Therefore, there was no commonality of interest in salary between the secretaries and the custodial/maintenance personnel.

The terms of employment for the secretaries was different than for the custodial/maintenance personnel. The secretaries are generally ten-month employees, whereas the maintenance and custodial staff are generally twelve-month employees. The duty hours are different. Most secretaries work a 37 and one half-hour workweek, whereas most custodians and maintenance personnel work a (45) hour workweek including paid overtime. Additionally, some of the custodians and maintenance staff work evening shifts and snow days. Secretaries are not required to come to work on snow days.

The classified employees do not have common duty locations. Maintenance personnel report to the maintenance office at the junior high school. Custodians report and perform their duties at their assigned schools. Secretaries work in administrative offices in their particular school.

Not only do the Classified Employees not have common duty locations but they also generally do not have the same supervisors. Secretaries are assigned to a school and accountable to the Building Principal. Custodians and maintenance personnel are accountable to the Director of Buildings and Grounds.

The foregoing differences in wage rates, hours worked, and working conditions lead to the conclusion that secretaries do not have a mutuality of interest with the custodians and maintenance personnel.

The secretaries and custodial/maintenance personnel all testified that they did not use the same skills or perform the same job duties as any other members outside their job classification. The lack of community of interest is quite apparent from this testimony. See e.g. City of Grand Island.

The secretaries type, answer phones, greet visitors, supervise lunchrooms, assist teachers and principals, maintain student records, send/receive correspondence, record grades, handle budgets, supervise insubordinate students, and care for sick children. These job duties are exclusive to secretaries and the secretaries likewise do not perform any of the duties of custodial and maintenance personnel. In order to become employed by the District, secretaries must have a high school diploma or GED. Secretaries must have knowledge of computers and bookkeeping as well as personal skills because they interact routinely with the public and with parents. These skills are markedly different than the skills required of custodians and maintenance personnel.

The custodians remove snow, unlock doors, turn on lights, mop, dust, sweep, and conduct general maintenance as needed. A custodian’s essential job function is to keep their building clean and comfortable. Custodians do not perform any of the secretaries’ job duties listed above. In addition to their job duties, they must posses certain skills to be hired by the District. Custodians must have a high school diploma or GED and must demonstrate aptitude or competence for assigned responsibilities to be hired by the District. Custodians are required to have technical skills to use various cleaning products and physical skills for lifting and cleaning. These skills are not similar to the skills required of secretaries.

The maintenance personnel perform general maintenance, plumbing, carpentry, or electrical maintenance work for the District-owned facilities. Maintenance personnel do not perform any of the secretaries’ job duties listed above. In addition to the duties that maintenance personnel perform, they must also possess certain skills to be hired by the District. Maintenance personnel must have a high school diploma or GED, plus expert technical skills in their particular area of maintenance. These technical skills are not required of secretaries in the District.

Neither the secretaries nor the custodial/maintenance personnel do the same job as the other. Nor are their skills the same. Secretaries and custodial/maintenance personnel clearly do not share any commonality of duties and skills.

On the other hand, even though the Respondent recognizes the difference in skills, the Respondent argues that the divergence in skills between the members in UE Local 801 is not so great that the Respondent cannot adequately represent all the members. We can find no rule of law in prior Nebraska Supreme Court decisions or prior Commission decisions that supports the Respondent’s argument. Nonetheless we will analyze the divergence of skills to determine if it is indeed so great that the Respondent cannot adequately represent all the members.

In plotting bargaining strategy the Respondent is always balancing the interests of the secretaries against the interests of the custodial/maintenance personnel. The Union Representative, Greg Cross testified that as a union negotiator, it was impracticable to represent the interests of both groups because each group had incongruent objectives from the bargaining process. Secretary and UE Local 801 negotiating team member, Rhonda Carnell, testified that for certain negotiated agreements, they tried to achieve the objectives of the secretaries and then other years they would try to achieve the objectives of the maintenance/custodial personnel. This balancing of interests clearly indicates that the divergence of skills is so great that Respondent cannot meet the needs of the secretaries while meeting the needs of the custodial/maintenance staff.

The Union has been in existence since July of 1996 and has negotiated for three Bargaining Unit agreements prior to the filing of this case. The evidence reflects that both secretaries and custodians/maintenance personnel  have been officers in the UE Local 801. The current president of UE Local 801 testified that he thought that the problems the secretaries were experiencing could be corrected over time because the current unit was new and needed time to grow as a unit. Currently none of the secretaries are dues paying members of the Bargaining Unit. These facts do suggest that the interests of the secretaries are not mutual with the custodian/maintenance personnel.

Both parties at trial stipulated that the secretaries desired to have a bargaining unit separate from the custodians, maintenance personnel, and food delivery driver. According to the Nebraska Supreme Court in Sheldon Station, this factor must be viewed in conjunction with the other factors and cannot alone be of any legal significance. This factor is clearly in the secretaries' favor, and the Commission takes this factor into consideration accordingly.

Extent of Employee Interchange

The Commission found in McCook, supra that interaction is not the test used for community of interest, but rather, the Commission considers only employee interchange.

Interchange is where an employee from one job classification replaces or substitutes for an employee of a different job classification. Whereas, interaction is where two or more job classifications may correspond with one another in order to perform daily job duties.

The evidence presented at trial indicated that secretaries have never substituted for maintenance personnel or custodians. Evidence was presented that on occasion a maintenance employee might substitute for absent custodians, but that such interchange does not occur on a regular basis. Secretary Rhonda Carnell testified that she did not recall any secretary transferring to become a custodian or maintenance personnel nor did she recall any custodian/maintenance personnel transferring to become a secretary. Carnell testified that she did interact with the building’s custodial staff on a regular basis. Frank Tracy, a maintenance employee, also testified that he interacted with various building secretaries depending on his job location. This evidence does not suggest that there is any interchange between the secretaries and the custodial/maintenance personnel because the evidence lacked the requisite element of substitution or replacement of a member of UE Local 801 from one job classification for another job classification. On the other hand, the evidence did indicate that the part-time food delivery driver is a custodian and is paid on the custodian’s wage scale.

We recognize that the secretaries do interact with the custodians and maintenance personnel, but we find that there is no employee interchange between the secretaries and the custodial/maintenance personnel. Therefore, the evidence establishes the lack of employee interchange between the secretaries and custodial/maintenance personnel.

Considering all of the above factors, it is clear that the secretaries do not share a community of interest with the custodians and maintenance personnel. The secretaries do not have mutuality in wages, hours, and working conditions. They do not perform the same duties and they do not have the same skills as the rest of the members of the Bargaining Unit. The established policies of the employer clearly differentiate between secretaries and custodial/maintenance personnel. There is no interchange between secretaries and the custodial/maintenance employees. We therefore find that the secretaries do not share a community of interest with the custodians and maintenance personnel.

SEVERANCE AND UNDUE FRAGMENTATION

Although the secretaries desire to be severed from the Bargaining Unit, the Respondent maintains that it is inappropriate to sever the secretaries because amendment of the Bargaining Unit will cause undue fragmentation.

It is appropriate to amend a bargaining unit if the Commission finds the Bargaining Unit members lack a community of interest and the amendment does not result in undue fragmentation. See Rodeo Telephone, Inc. 213 v. Rodeo Telephone, Inc Supervisory Employees Ass’n, 9 CIR 111 (1987).

In order to determine if an amendment to a bargaining unit would result in undue fragmentation, we must examine this case in light of the statutory presumption contained in NEB. REV. STAT. § 48-838(2). 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 Respondent correctly observes that the statutory restrictions against undue fragmentation in public-sector employment area prescribed by § 48-838(2), can be overcome only by strong evidence justifying the need and propriety of such additional division. However, in this case, because the Respondent’s Bargaining Unit lacks a sufficient community of interest, the Petitioner need not further justify any resulting fragmentation.

The Commission recognizes the important public policy of avoiding undue fragmentation of bargaining units. However, Nebraska’s policy against undue fragmentation does not override the basic requirement of community of interest in defining appropriate bargaining units. 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. We are simply not at liberty to disregard the meaning of the statute in order to more efficiently administer labor negotiations.")

The amendment of the Bargaining Unit will not result in undue fragmentation because of the secretaries inherent lack of a community of interest with the other Bargaining Unit members. Moreover, the District currently negotiates with another unionized bargaining unit of classified employees - the food service employees. The testimony at trial confirmed that an additional bargaining unit has not hampered the District’s ability to develop uniform employment policies and practices. Therefore, we are compelled to follow the specific language of NEB. REV. STAT. § 48-838(2), by amending the secretaries from the current Bargaining Unit.

The Respondent contends that the Commission, in order to amend the unit, must find a substantial change in job duties since the certification of the Bargaining Unit before it can amend a certified bargaining unit. While the Commission acknowledges that "a substantial change in job duties" is indeed a factor under the NLRB, we conclude that it is not a factor under Nebraska law. Nonetheless, the Respondent relies on the Commission’s decisions in City of West Point, Nebraska v. General Drivers & Helpers, Local Union 554, 12 CIR 223 (1996) and City of Scottsbluff v. Scottsbluff Police Officers’ Ass’n, 12 CIR 166 (1996), suggesting that they indicate the use of such a factor. Both cases cited by the Respondent are readily distinguishable from the present proceeding. Unlike Scottsbluff, in the instant case there are no statutory presumptions contained within the Nebraska Revised Statutes, which apply to amending bargaining units containing members other than police officers or firefighters. Therefore, the reasoning set forth in Scottsbluff does not apply to the case at hand.

Furthermore, in West Point, the Commission had previously held that the bargaining unit as stipulated was the appropriate unit pursuant to Nebraska law. In the instant case, the Commission did not make a finding that the previously stipulated unit was the appropriate unit. Instead the Commission certified the stipulation without a statement of appropriateness. Moreover, the Commission has previously held that a change in circumstances since certification of the unit is not always required. See Nebraska Public Employees, Local Union 251 affiliated with AFSCME v. County of York, Nebraska, 13 CIR 198 (1998); International Brotherhood of Electrical Workers Local 1536 v. Lincoln Electric System, 215 Neb 840, 341 N.W.2d 340 (1983) ("IBEW") (reliance on a two year history did not outweigh the other facts indicating a lack of community of interest); Rodeo Telephone, Inc. 213 v. Rodeo Telephone, Inc Supervisory Employees Ass’n, 9 CIR 111 (1987) (the Commission amended a previously stipulated bargaining unit to exclude one of two supervisors). The logic of the IBEW opinion, as expressed by the Nebraska Supreme Court, would appear to apply with equal validity to the case now before us. We therefore, find that this factor does not outweigh the complete lack of community of interest between the secretaries and the custodial/maintenance personnel.

The Respondent asserts that the Commission cannot amend the Bargaining Unit unless the Commission finds the Respondent has breached its duty of fair representation. We do not find any evidence that would indicate a breach of the duty of fair representation by the Respondent. Moreover, the Petitioner has not sued the Respondent for breach of representation duties and likewise has not produced any evidence that the Respondent has breached its duty of representation. The Commission, when amending a bargaining unit, does not consider the factor of breaching the duty of fair representation. See Sheldon Station. Nonetheless, the evidence in this case does not point to a breach in representation. The Respondent has tried to represent all members in the group. Therefore its actions were not wholly irrational or arbitrary. See Air Line Pilots Ass’n Int’l v. O’Neill, 499 U.S. 65, 111 S. Ct. 1127, 113 L.Ed.2d 51 (1991). While this factor does weigh in favor of the Respondent, it is not a factor considered under Nebraska law and accordingly we will not consider the factor.

Finally, the Respondent alleges that the Bargaining Unit is not too large for secretaries to have an impact on the performance of the bargaining representative. In order to support this theory, Respondent relies on In Re: South Sioux City Municipal Electrician’s Ass’n, 3 CIR 318 (1977), citing the fact that the Commission found that five electricians in a 30-35-member unit was large enough to impact the performance of the bargaining representative. We find that this opinion does not support Respondent’s argument. While the Commission found that five members could impact the unit, the Commission held that their interests were not diversified from the other members of the bargaining unit. Yet, in the instant case, the interests of the secretaries are diversified from the interests of other members of the Bargaining Unit. Therefore, because their interests are too diverse to have a community of interest with the custodians and maintenance workers, the Commission cannot find that 16 secretaries out of approximately 47 members can effectively impact a bargaining unit.

The Respondent contends in its Pretrial Brief that any amendment of the Unit cannot become effective until the expiration of the new collective bargaining agreement, effective on July 1, 2003. The Respondent cites Nebraska Ass’n of Correctional Employees, AFSCME v. State of Nebraska, 10 CIR 97, 100 (1988) ("AFSCME"). In AFSCME, the Commission noted that there were only three months left before the expiration of the current negotiated agreement, stating that "determinations herein will pertain to future negotiations in future contract years." The Commission cited City Employees Association v. City of Lincoln and Lincoln City Employees Union, 6 CIR 331 (1982) ("NAGE"), where the parties entered into contracts after the Petition for Clarification was filed.

The facts in this case do not support the Commission making a determination that this amendment is for future negotiations sessions. Unlike AFSCME and NAGE, the Petition in this case was filed prior to the expiration of the 1999-2001 negotiated agreement. It would serve no purpose to delay the amendment of the unit for approximately another 2 years. Therefore, we find that an order should become effective immediately.

We find that an order amending the Bargaining Unit to delete the secretaries is appropriate under NEB. REV. STAT. §  48-838(2).

1.  That the bargaining unit shall be amended to read:

All custodians, maintenance workers, print shop workers, and food delivery drivers, employed by the South Sioux City Community School District, excluding the superintendent of buildings and grounds and all secretaries including those secretaries assigned to the central office who report directly to the superintendent of schools or the business manager/administrative assistant.

2.  That this amendment shall be effective immediately.

All panel judges join in the entry of this order.