14 CIR 141(2003) 

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 APPEARANCES:

The sole issue in this case is the appropriateness of a proposed bargaining unit. On July 31, 2002, Grand Island Education Association (hereinafter the "Association"), filed a Petition seeking an election to determine whether the Association should be certified as the exclusive bargaining agent for "the seven sign language interpreters employed by the [Hall County] School District [No. 40-0002, a/k/a Grand Island Public Schools]."

Hall County School District No. 40-0002, a/k/a Grand Island Public Schools (hereinafter "the District"), filed an Answer on August 20, 2002, which included a denial of the appropriateness of the proposed bargaining unit. On September 11, 2002, 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.

The Commission held a Pre-Trial Conference on October 7, 2002 and a Trial was held on October 17, 2002, 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 1-8 and the District’s Exhibits 9-13. The parties simultaneously submitted post-trial briefs on October 28, 2002.

Having read the parties’ trial and post-trial briefs and having fully considered the evidence present in light of applicable law, the Commission determines that a single bargaining unit composed of the seven sign language interpreters employed by the District is not an appropriate unit for collective bargaining. The Commission 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 Association seeks to include the District’s sign language interpreters in a single bargaining unit. There are seven (7) full-time sign language interpreters and one substitute sign language interpreter in the District. These seven sign language interpreters are considered part of a larger group of classified employees in the District. There are approximately 432 classified employees in the District. The District divides all of the classified employees into five groups. These groups include secretaries (Category I), para-educators/paraprofessionals (Category II), nutrition services (Category III), custodians (Category IV), and maintenance and transportation (Category V). The District has placed the seven sign language interpreters in the para-educators/para-professional category. The para-educator/paraprofessional category includes approximately 203 of the District’s classified employees.

Under the para-educator/paraprofessional category, there are numerous sub-classifications. These sub-classifications include special education para-educators, vocational education para-educators, ESL para-educators, migrant recruiters, translator/parent facilitators, deaf interpreters, paraprofessionals I-IV, home bound staff, multicultural at risk coordinators, lunch recess monitors, technology and system support, and media secretaries.

The positions included in the para-educator/paraprofessionals category have varied job descriptions. However, all work with students, parents, and classroom teachers. The vast majority of para-educators/paraprofessionals report to the principal or the principal and special education supervisors. All are hired through the District’s main office on a centralized basis and all are paid on an hourly basis. The hours and days worked by employees in the para-educators/paraprofessionals category vary depending on student need.

The qualifications for the District’s sign language interpreters are similar to the other para-educator positions included in the para-educator/paraprofessional category. For example, the seven sign language interpreters must have a high school diploma, much like the para-educators for the various disciplines. The sign language interpreters must also possess the same skills set as the other para-educators (e.g., problem solving, math computation, reasoning ability). In establishing the qualifications for the seven sign language interpreters, the District had to comply with Rule 51, which was enacted by the Nebraska Department of Education on October 16, 2000. Rule 51 requires a minimum of 72 clock hours of continuing education for every five years of practice to maintain a competency level for sign language interpreters.

The District does not require any certification to hold the position of sign language interpreter. However, most, but not all, of the sign language interpreters, hold a specialty certificate. In order to obtain the specialty certificate, the majority of the sign language interpreters matriculated programs at institutions located outside of Nebraska. The curriculum for those programs include language development, history of deaf education and educational interpreting, sign systems and the linguistics of language. The seven sign language interpreters also studied discourse analysis for breaking down languages, skill development, teaching styles, and learning styles of students.

The tasks and duties of the District’s sign language interpreters are substantially similar to those of the employees in the other para-educator classifications. All of the para-educators work 185 days per year. Many of the essential functions of the sign language interpreters are the same as those of the other para-educators. The sign language interpreters, like other para-educators, provide individual assistance to students, alert teachers to students’ needs, and organize materials for teacher and student use.

The wages, terms and conditions of employment for the District’s classified employees are detailed in a handbook that is prepared and distributed by the District on an annual basis. While the wage rates of all classified employees are set forth in the handbook, there are separate schedules for each category. The wage rates within each category are relatively similar for employees with similar skill levels and years of experience. Certain benefits outlined in the handbook, such as sick leave, personal leave, and vacation, vary in amounts depending upon whether the employee is a ten-month, twelve-month or a full-time employee.

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

It is well-settled that in tailoring the appropriate unit the Commission considers the mutuality of interest in wages, hours and working conditions; duties and skills of employees; extent of union organization among employees; desires of the employees; fragmentation of units; established policies of the employer; and statutory mandates to assure proper functioning and operation of governmental service. Sheldon Station Employees Ass’n v. Nebraska Public Power Dist., 202 Neb. 391, 275 N.W.2d 816 (1979). "While it is true 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." Id at 395-396. The weight of each factor will also vary from case to case. These factors then must be examined in light of the statutory presumption contained in Neb. Rev. Stat. § 48-838 (2) (Reissue 1998), which provides as follows:

It shall be presumed, in the case of governmental subdivisions such as municipalities, counties, power districts, or utilities districts with no previous history of collective bargaining, that units of employees of less than departmental size shall not be appropriate.***

It is clear that in enacting subsection (2) of section 48-838, the Legislature properly sought to avoid undue fragmentation of the bargaining units. *** It (undue 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.

House Officers Ass’n v. University of Nebraska Medical Center, 198 Neb. 697, 255 N.W.2d 258 (1977).

Applying the benchmark set forth in Sheldon Station, the evidence does not support a finding that a bargaining unit composed of only the seven sign language interpreters is appropriate.

The District asserts that its established policy, as reflected in both the District’s Classified Employee Handbook and in practice, has been to divide all of the classified employees into five categories and to include the sign language interpreters in the para-educator/paraprofessional category. The Association, on the other hand, contends that the established policy of the District should not be found to be a controlling factor in this case because the Commission did not find the evidence of the Employer’s Handbook persuasive in McCook E.S.P. Ass’n v. Red Willow County School Dist. No. 73-9917, a/k/a McCook Public Schools, 13 CIR 342 (2000).

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. American Ass’n of Univ. Professors v. Board of Regents, 198 Neb. 243, 259, 253 N.W.2d 1, 9-10 (1977) ("AAUP"). 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.

The District presented evidence that it revamped its Classified Employees Handbook in the past year. The District has placed the seven sign language interpreters into Category II with other para-educators. In addition, the job title set forth in the job description for the sign language interpreters begins with "Paraeducator/Instructional Support."

The Association did not introduce any evidence of an established policy of the District to separate the sign language interpreters from the other para-educators and paraprofessionals. Without such evidence, we find that the District’s established policy of including the sign language interpreters in Category II and identifying them as para-educators weighs in favor of a finding that a community of interest exists among the classified employees in Category II rather than a finding that a community of interest exists exclusively with respect to the sign language interpreters.

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 Association maintains that the seven sign language interpreters have mutuality of interest in wages, hours and working conditions. The District does not disagree that the sign language interpreters have a mutuality of interest in wages, hours and working conditions, but contends that the seven employees also have mutuality of interest in wages, hours and working conditions with the other employees in Category II.

The classified employees’ wages are set forth in the District’s Classified Employees Handbook. There is a separate schedule for each category. The seven sign language interpreters are in Category II for para-educators/paraprofessionals. The vast majority of the employees in Category II, including the seven sign language interpreters, work 185 contract days a year. Comparatively, employees in Categories I, IV and V work, on average, 260 contract days a year.

All para-educators/paraprofessionals, including the seven sign language interpreters, work with students, parents, and classroom teachers. The vast majority of para-educators/paraprofessionals report to the principal or the principal and special education supervisor. All are hired through the District’s main office on a centralized basis and all are paid on an hourly basis.

The foregoing similarities in wage rates, hours worked, and working conditions suggest that mutuality of interest in wages, hours and working conditions extends beyond the seven sign language interpreters to the other employees in Category II, particularly para-educators.

The Association asserts that the seven employees in the position at issue perform similar duties and possess similar skills. The District admits that the seven sign language interpreters have some individual skills special to their job classification. Nevertheless, the District contends that the issue is not whether the seven sign language interpreters perform the same duties and possess similar skills. Instead, the District feels the issue should be whether their duties and skills are sufficiently unique or distinct from the duties and skills set that they share with the other employees in Category II to warrant their being set apart in a separate bargaining unit.

All of the sign language interpreters must have a high school diploma, as do the processing center technician and para-educators for the various disciplines in Category II. The only difference between the qualifications for employment as a sign language interpreter and a para-educator is that the District must follow the Department of Education’s Rule 51 in setting its proficiency level for sign language interpreters. It was noted, however, that the District will soon have to follow a similar proficiency standard (Rule 10) in order to hire all para-educators. Furthermore, all of the employees in the para-educator classification have skills which are substantially similar in terms of problem solving, reasoning, verbal comprehension, proficiency in oral and written communications, human relations, and the ability to work with students. While the seven sign language interpreters do possess some specialized skill, their required proficiencies and general skills are very similar to the other para-educators in Category II.

The Association suggests that because six of the seven sign language interpreters are members of the Association, the Commission should consider the past bargaining history between the Association and the District. While six of the seven sign language interpreters are dues paying members of the Association, there is no prior bargaining history between the District and any of its classified employees. No bargaining agent has ever been recognized or certified to represent any of the District’s classified employees. The District has never negotiated with any of its classified employees regarding wages, hours, or terms and conditions of employment. The Commission will not recognize bargaining between the Association and the District relative to the District’s certificated staff as evidence of past history of bargaining for the seven sign language interpreters.

At trial, the Association presented evidence that six of the seven sign language interpreters desired to have their own bargaining unit. 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. While this factor clearly weighs in the Association’s favor, it does not outweigh the other factors.

The Association argues that the seven sign language interpreters can interchange with one another. The District admits that the seven sign language interpreters can interchange with one another because they are in the same job classification. Moreover, the evidence presented at trial establishes that the sign language interpreters perform essentially the same job. While the seven sign language interpreters do interchange with one another, this factor alone does not present the Commission with compelling evidence of a community of interest distinct from the other para-educators in Category II.

The Association argues that because no bargaining unit is being fragmented, undue fragmentation cannot occur as a result of a finding that the seven sign language interpreters constitute an appropriate bargaining unit. Instead, the Association suggests fragmentation occurs only when other proposed unions seeking recognition/certification come before the Commission requesting units separate from the sign language interpreters. The Association also urges the Commission not to apply the Supreme Court’s reasoning in Sheldon Station in deciding the issue of undue fragmentation. On the other hand, the District argues that the Commission must apply Sheldon Station and abide by the legislative intent to avoid undue fragmentation.

The public policy provisions of the Commission of Industrial Relations Act (§ 48-802) require the Commission to insure the continuous operational efficiency of governmental services. Fragmented units interfere with the continuous operational efficiency of governmental services, and should, therefore, be avoided to the extent that it is possible, consistent with the preservation of the rights of public sector employees to engage in collective bargaining. International Brotherhood of Electrical Workers v. State of Nebraska: Nebraska Educational Television Commission, and The Board of Regents of the Univ. of Neb., 3 CIR 23 (1975). We conclude that the limited unit requested by the Association herein is not appropriate. We base our decision on the long-standing public policy against fragmented units, the application of Neb. Rev. Stat. § 48-838 (Reissue 1998), and the case law established by the Commission and the Nebraska Supreme Court.

In Sheldon Station, the Nebraska Supreme Court held that it could not rationalize creating separate, non-system-wide bargaining units of as little as six (6) employees, when large system-wide units could be properly established at all the various NPPD locations. Sheldon Station, 202 Neb. at 403. In the instant case, seven (7) sign language interpreters desire to form a separate unit. The seven interpreters are employed by the District in the general category of classified employees. The seven have been placed in the para-educator/paraprofessional category along with 196 other classified employees. If the Commission were to certify the seven sign language interpreters as a bargaining unit separate from the other 196 classified employees in Category II, it could result in the creation of eight to ten more bargaining units within that category of classified employees alone. In addition, the evidence showed that the creation of multiple bargaining units would interfere with the continuous operational efficiency of instructional services in the District.

The Supreme Court’s rationale for the decision in Sheldon Station appears to apply with equal force to the facts now before us. Therefore, we must find in the District’s favor on the issue of "fragmentation."

The District’s sign language interpreters are part of an educational team and are vital to the District’s mission of providing a quality education to its students. The team also includes the District’s teachers, administrators, and other paraprofessionals. While each of the sign language instructors performs an individualized and necessary aspect of a student’s education, Nebraska’s public labor laws recognize that fragmented units interfere with the continuity of the delivery of instructional services. Requiring job classifications that share a community of interest to form a departmental unit is both required by, and in keeping with, the intent of the Legislature to prevent undue fragmentation. We conclude that the limited unit requested by the Association herein is not appropriate. The Commission, therefore, finds in the District’s favor and denies the Association’s request to create a single bargaining unit for the seven sign language interpretors.

IT IS THEREFORE ORDERED that the Petition is hereby dismissed.

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

Issued February 19, 2003.