14 CIR 111 (2002)  

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Metropolitan Technical Community College Education Association (hereinafter, "Petitioner" or "Association"), filed a petition to amend the certified bargaining unit consisting of:

All employees of Metropolitan Technical Community College who have received an "Annual Notice of Employment" as of June 8, 1976, in the positions of Instructor, Counselor, Vocational Evaluator, and Campus Librarian.

 

(the "Bargaining Unit").

Metropolitan Technical Community College (hereinafter, "Metro Tech" or "Respondent"), filed an Answer which included a denial of the appropriateness of the proposed bargaining unit. The issue at trial was whether there exists a sufficient community of interest among full-time Academic Advisors, Health Programs Advisors, and Academic Advisor/Advising Resource Specialists at Metro Tech, to warrant their inclusion into an existing bargaining unit comprised of full-time instructors and counselors serving under annual contracts.

Metro Tech has six principal locations which include the Fort Omaha Campus, the South Omaha Campus, the Elkhorn Valley Campus, the Offutt Center, the Sarpy Center in La Vista, and the Fremont Center.

The Unit presently consists of approximately 175 full-time faculty members and 10 full-time counselors. The ten counselors include three Student Retention Services Counselors, three Special Needs Counselors, and four Academic Counselors (hereinafter, "counselors").

There are 18 advisors employed by the Respondent that wish to be included within the existing bargaining unit. The 18 advisors consist of one Academic Advisor/Advising Resource Specialist, one Health Programs Advisor, and 16 Academic Advisors (hereinafter "advisors").

The advisors and the bargaining unit counselors share the same office space in the Student Services offices, and common procedures. Both serve "drop-in" students interchangeably on a next available basis. The primary work performed by both the advisors and the counselors occurs within these Student Services offices at the various locations. Both positions share common supervisors under a common chain of command.

Walk-in students do not generally distinguish between advisors and counselors. Both can register students for classes, give academic advice, provide general information about Metro, receive requests for tutoring between the academic advisors and counselors, provide computer advising, and both review assessment test information with the students. Both advisors and counselors are subject to the same continuing education requirements and are subject to generally common grievance procedures.

The parties have stipulated that there are no other labor organizations interested in this matter and that there is currently no collective bargaining agreement covering the advisor employees in question. The Respondent’s Board of Governors was willing to recognize the Petitioner as bargaining representative for the advisors, but only for a separate unit of the advisors. The advisors desire to become part of the already existing group, and chose instead to initiate this proceeding before the Commission.

In determining the appropriateness of an existing bargaining unit, § 48-838 provides that "the Commission shall consider established bargaining units and established policies of the employer." NEB. REV. STAT. § 48-838(2). In analyzing cases under 48-838, the Commission may also consider additional relevant factors when determining the appropriateness of a proposed bargaining unit. Marcy Delparding v. United Electrical, Radio, and Machine Workers of America, 13 CIR 400 (2001). 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 or

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) ("Sheldon Station").

The threshold inquiry in bargaining unit determinations is whether a community of interest exists among the employees, which is sufficiently strong to warrant their inclusions in a single unit. AAUP, 198 Neb. at 261-262; 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"). When determining community of interest the Commission analyzes which factors should be considered and the weight each factor receives. Sheldon Station, 202 Neb. at 395.

The wages, hours and working conditions between the advisors and the counselors at Metro Tech are similar. All of the academic advisors are 12-month employees, while seven of the ten counselors are 12-month employees. Although structured differently, the ultimate net days of work are the same (232) for all 12-month counselors and advisors. While the Respondent structures the contract days for counselors differently, subtracting out normal accrued vacation and paid vacation, it becomes apparent the two groups of employees work approximately the same days per year. The average annual hours worked for advisors is 1,857. The average annual hours contracted for 12-month counselors is 1,856.

Currently, the advisors do not have a negotiated agreement with the Respondent. Their wages are determined pursuant to a pay rate schedule in Job Group E with many other Metro Tech employees (e.g. central stores supervisor, general maintenance carpenter, graphic designer, maintenance mechanic, and public safety supervisor). In this group, the average hourly wage is $12.94. The counselors’ wages are set by the Petitioner’s current Negotiated Agreement with the Respondent. Their average hourly wage is $24.64. This is arguably the most apparent distinction between these two positions.

While wages differ between the advisors and the counselors, their fringe benefits are similar. They both receive the same tuition waivers, payout for unused sick leave, long term disability, sick leave, employee assistance plan, supplemental life insurance, and essentially equal contributions to health plans.

Working conditions for both the advisors and the counselors are similar. Advisors and counselors at nearly all the Metro Tech locations share the same office space, share the same office procedures, and serve the same students. Not only do they both serve the same students, but the employer’s organizational structure also places them in the same chain of command at each campus, and subject to the same evaluator. We find that sufficient mutuality of work, skills, and working conditions exists between the counselors and the advisors.

The job duties and skills of the advisors and counselors overlap, and are often the same or substantially similar. The first available counselor or advisor commonly handles the initial intake students or prospective students seeking student services. Both advisors and counselors enroll students or diagnose the students’ concerns, and if necessary direct them to an appropriate specialist. In terms of routine work, both counselors and advisors perform almost identical functions in the Student Services offices.

The Respondent argued there are differences in the educational requirements, as most counselors have a master’s degree. Yet, the evidence shows an advisor at Metro Tech who also has a master’s degree. This individual had also served a temporary assignment as a counselor.

Continuing staff developments/educational requirements are the same for the counselors and the advisors, and both are subject to common grievance procedures. We find that the job duties and job skills are sufficiently similar between the advisors and counselors to warrant their inclusion in the bargaining unit.

The Association has been in existence since 1976, and has negotiated numerous Bargaining Unit agreements prior to the filing of this case. The evidence reflects that the Bargaining Unit’s negotiating team’s current practice is to have a place on the negotiation team for a representative from each of the various "job titles". The counselors have one representative that represented them in the past negotiations.

The Respondent contends that the 18 advisors could not be effectively represented in a bargaining unit of 185 employees. The counselors currently in the unit believe the Association has effectively represented their interests despite being overwhelmingly outnumbered by the 175 faculty employees. If the Association has successfully represented the interests of the counselors within a group of 175 faculty employees, we have little basis to conclude that the interests of the advisors would not be represented in this unit.

Although not a sufficient basis alone to sustain a decision, it is clear that the desires of the advisors are to part of the unit, and it is clear from the Petition that the existing unit desires them in.

Respondent’s organizational structure is actually structured to enhance the ability of counselors and advisors to interchange. They interchange regularly, especially at peak times such as student enrollment and the first days of classes. They interchange regularly by communally enrolling students, providing general information about Metro Tech, and performing academic advising.

Advisors have also substituted for and replaced counselors in the past. Karen Rodgers, a current advisor at the Fort Omaha Campus, replaced a counselor position when she was hired. Linda Chandler, a current advisor at the South Omaha Campus, also was temporarily posted in the position of a counselor. Chandler also interchanges as a part-time faculty member. We find that there is a significant amount of employee interchange between the advisors and the counselors.

Considering all of the above factors, it is clear that these two positions are closely aligned professional groups whose ultimate function is aiding and furthering the educational goals of Metro Tech. In terms of routine work, both counselors and advisors perform very similar job duties in all of the Student Services offices. The evidence suggests that the interests of the 18 advisors will be effectively represented in the current bargaining unit, that they desire to be in that unit, and that they already interchange on a daily basis in their respective student service offices. We conclude that the advisors share a community of interest with the unit.

Clearly, the intent of the Nebraska Legislature is to avoid fragmentation of bargaining units within the public sector. See NEB. REV. STAT. § 48-838(2). The Nebraska Supreme Court has stated:

… It (under fragmentation) fosters proliferation of personnel necessary to bargain and administer contracts on both sides of the bargaining table … It destroys the ability of public institutions … to develop, administer, and maintain any semblance of uniformity or coordination in their employment policies and practices.

Sheldon Station, 202 Neb. at 396; Houses Officers Ass’n v. University of Nebraska Medical Center, 198 Neb. 697, 255 N.W.2d 258. Our responsibility under § 48-838 is to determine an appropriate unit, not the ultimate unit, or the most appropriate unit. Including advisors in the current unit does not create a conflict of interest, and avoids undue fragmentation of bargaining units.

The authorization forms filed by 17 of the 18 advisors were broad authorizations, specifically requesting and consenting to inclusion within the existing bargaining unit. In the light of these specific consents to inclusion, we conclude that an election among the advisors is unnecessary to affect an amendment of the unit.

The reality of the unit has evolved since the 1976 order. Certain described positions are now vacant. For the purpose of our order, all present advisor positions (academic, health programs, and advising resource specialists) are included in the term Academic Advisor.

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

All employees of Metropolitan Technical Community College who have

received an "Annual Notice of Employment" in the positions of

Instructors, Counselor, Vocational Evaluator, Campus Librarian, and

all Academic Advisors.

2. That this amendment shall be effective immediately.

All panel judges join in the entry of this order.

Entered August 6, 2002.