14 CIR 150 (2003) 


UNION NO. 2025, )
                                  Petitioner, ) FINDINGS AND ORDER
         vs. )
                                  Respondent. )


For Petitioner: Dalton W. Tietjen
Tietjen, Simon & Boyle
200 Haymarket Square
808 P Street
Lincoln, NE  68508
For Respondent: William A. Harding
Harding, Shultz & Downs 
800 Lincoln Square
121 South 13th Street
P. O. Box 82028
Lincoln, Nebraska  68508

Before: Judges Blake, Burger, and Lindahl



On September 18, 2002, International Brotherhood of Electrical Workers, Local Union No. 2025, (hereinafter "Petitioner" or "the Union"), filed a Petition seeking an election to determine whether the Union should be certified as the exclusive bargaining agent for all permanent maintenance employees of Respondent working at Cooper Nuclear Station.

After several subsequent stipulated revisions, the requested bargaining unit would consist of all full-time and regular part-time maintenance employees working at Cooper Nuclear Station, including, but not limited to the following classifications:

Custodian, Electrician Level I, Electrician Level II, Electrician Level III, Electrical Specialist, Senior Electrical Specialist, HVAC Specialist, I & C Specialist, I & C Technician I, I & C Technician II, I & C Technician III, Maintenance Support Analyst, Mechanic I, Mechanic II, Mechanical Specialist, Metrologist, Parts Specialist, Predictive Maintenance Specialist, Radiological Protection Technician I, Routine Maintenance Specialist, Utility Service Technician I, Utility Service Technician II, excluding supervisory, clerical and professional employees and all employees assigned to the Engineering Department. (See Stipulation No. 6).

Nebraska Public Power District, (hereinafter "the Respondent" or "NPPD"), filed an Answer on September 27, 2002, which included a denial of the appropriateness of the proposed bargaining unit and five affirmative defenses. On October 9, 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 November 27, 2002 and a Trial was held on December 9 and 10, 2002. The parties stipulated that the two issues to be decided were:

1. Whether the Petition improperly attempts to designate a less than system-wide bargaining unit and the requested bargaining unit is therefore inappropriate within the meaning of Sheldon Station Employees Ass’n v. Nebraska Public Power Dist., 202 Neb. 391, 275 N.W.2d 816 (1979).

2. Whether, in the alternative, the requested bargaining unit is inappropriate because it does not contain all of the employees at the Respondent’s Cooper Nuclear Station in the operation and maintenance functions.

The parties simultaneously submitted post-trial briefs on January 22, 2003 and post-trial reply briefs on February 7, 2003.

Having read the parties’ post-trial briefs and having fully considered the evidence presented in light of applicable law, the Commission determines that the requested bargaining unit composed of all permanent maintenance employees of Respondent working at Cooper Nuclear Station as listed above, is not an appropriate unit for collective bargaining. The Commission dismisses the Petition. This ruling is fully explained below.


NPPD is a public utility engaged in the business of supplying electric power in ninety-one of the ninety-three counties in the State of Nebraska. The company operates facilities for generation, transmission, and distribution of electric power and energy, supplying approximately seventy-five wholesale customers and approximately 85,000 retail customers with electricity. To meet its power generation requirements, NPPD owns or exercises control over the output of three steam plants (Canaday Station, Gerald Gentleman Station, and Sheldon Station), nine hydro facilities, nine diesel plants, a nuclear plant (Cooper Nuclear Station) and three peaking units. In those and its other fifty-one locations, NPPD employs approximately 2,300 individuals.

Cooper Nuclear Station (CNS) located near Brownville in southeast Nebraska began operations in 1974. Cooper Nuclear Station is the largest single power generation unit in the state. The plant operates under a Nuclear Regulatory Commission (NRC) license and is inspected and monitored on a regular basis. NPPD currently contracts with the Nuclear Management Company (NMC) to provide two management personnel at Cooper Nuclear Station. NMC and NPPD have discussed an operating agreement, which would involve NMC operating CNS. However, the evidence shows that at the time of trial there was no such agreement and there were no negotiations underway between NPPD and NMC to transfer any employees of NPPD to NMC. The proposed operating agreement between NPPD and NMC has not moved forward due to reservations from both parties, and NPPD takes the position that a change in state law would be required before it could agree to the terms requested by NMC. Also NPPD requested a six-month time designation to see how NMC performs in the management of other nuclear power plant locations.

As of December 5th, 2002, approximately 870 "craft" employees work at NPPD, and 285 of those employees are at Cooper Nuclear Station. Craft employees include both maintenance employees and operations employees. Of the 285 craft employees at Cooper Nuclear Station, approximately 100 maintenance employees would be included in the bargaining unit requested by the Union.

NPPD has organized its operations to provide for a high degree of centralized control. The company divides its operations into six functional departments, each headed by a different vice-president. These divisions and their functional responsibilities are Corporate Support Services, Wholesale Services, Retail, Energy Supply, Transmission Services, and Nuclear Energy. NPPD also has two departments which are headed by separate managers (Governmental Affairs and Strategic Planning and Environmental Services), as well as an Internal Audit Services Department, and a General Counsel Department.

Labor relations policies are centrally determined and administered, providing for uniform job classifications, pay grade zones, shift differentials, overtime, call-in pay, benefit privileges, and working conditions for all employees wherever located. Job classifications are generally not based on work locations. Most job classifications at the various stations are nearly identical. All job descriptions and classifications are prepared under NPPD’s job evaluation program to insure the uniform classification of employees who perform the same functions. Each pay grade carries a fixed minimum and maximum rate of pay at all work stations, the differential reflecting the employee’s experience and skill.

All personnel policies applying to the employees of NPPD emanate from the central office in Columbus, which policies are applied equally to all employees regardless of location. All employees of NPPD have the same paid holidays, medical leave, and vacation benefits. The same retirement and health insurance plan, as well as the same corporate-wide transfer policy, covers all employees at NPPD.

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


It is well recognized 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 based on the evidence presented in each case. Id. at 396. 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 utility districts with no previous history of collective bargaining, that units of employees of less than departmental size shall not be appropriate.

In enacting Subsection (2) of Section 48-838, the Legislature properly sought to avoid undue fragmentation of the bargaining units. 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. See House Officers Ass’n v. University of Nebraska Medical Center, 198 Neb. 697, 255 N.W.2d 258 (1977).

The Commission’s jurisdiction to determine issues of representation is codified in Neb. Rev. Stat. § 48-838. Past decisions of the Commission and the Nebraska Supreme Court have established criteria in the interpretation and the application of § 48-838. One of the most instructive cases in the past thirty years that developed these criterions was the case of Sheldon Station.

In Sheldon Station, various employees of the Nebraska Public Power District employed at the District’s Sheldon Station at Hallam petitioned the Nebraska Court of Industrial Relations to declare all persons, except supervisors, employed at the Sheldon Station, who were compensated at an hourly wage, as the appropriate bargaining unit for purposes of exclusive representation and bargaining. Sheldon Station, 202 Neb. at 392. The Nebraska Supreme Court held that proposed bargaining unit was inappropriate based on the public policy against undue fragmentation. The decision relied heavily upon the evidence presented at trial. The Nebraska Supreme Court concluded 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. The Supreme Court found no factors in favor of recognizing the Sheldon Station employees as an appropriate separate unit.

The case now before us is directly impacted by the decision in Sheldon Station, as the current case also deals with another plant (Cooper Nuclear Station) in the NPPD system. In deciding this case with the guidance of the Supreme Court in Sheldon Station, we must keep in mind the clear dictates of § 48-838, which has remained unchanged in this respect since its adoption in 1972, and the intent of the Legislature to avoid fragmentation of bargaining units in the public sector. Therefore, in applying the benchmark set forth in Sheldon Station, we hold that the evidence does not support a finding that a less than system-wide bargaining unit composed by Petitioner is appropriate.

Prior Bargaining History

Cooper Nuclear Station has no prior bargaining history, either voluntarily recognized or certified in front of the Commission, nor do any of the other facilities have any prior bargaining history within NPPD. While there is no prior bargaining history with a union at NPPD, there have been significant attempts in the past, as well as currently, to organize employees of NPPD. In 1977, the Sheldon Station Employees Association attempted to organize all hourly wage non-management personnel employed at Sheldon Station, resulting in the Sheldon Station decision. Further, in 1978 the International Association of Machinists Local No. 31 attempted to organize all full-time employees located at the Kramer Power Station in Bellevue, excluding supervisors, guards and clerical employees. In that attempt, the requested bargaining unit was also found to be inappropriate under Neb. Rev. Stat. 48-838, and the petition was dismissed. See International Ass’n of Machinists, Local No. 31 v. Nebraska Public Power District, Kramer Power Station, 3 CIR 533 (1978). Currently, there is evidence of a movement to unionize the employees in both the transmission business unit and the retail division at NPPD.

We find that both the current and the past efforts to unionize employees throughout the District do not warrant a finding sufficient to overcome the presumption in favor of a system-wide unit. Therefore, on the issue of prior bargaining history, we must find in Respondent’s favor.

Established Policies of the Employer

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. 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 American Ass’n of University Professors ("AAUP") v. Board of Regents, University of Nebraska, 198 Neb. 243, 253 N.W.2d 1 (1977).

Respondent follows a system-wide approach, which Respondent claims helps to reduce duplication and to run the company more efficiently and effectively. For example, Respondent’s pay policy follows a system-wide approach, placing employees throughout the power district in pay grades. Respondent has further developed system-wide committees such as the Employee Development Steering Committee to prevent wasteful duplication of resources. Based on the evidence, we find that Respondent consistently regards all NPPD employees as a system-wide group, dividing them throughout the NPPD system into various business units. Therefore, regarding the issue of established policies of the employer, we find in Respondent’s favor.

Centralization of Management and Labor Policy

Respondent argues that it has complete centralization of management because virtually all management effort is on a system wide basis through its corporate headquarters in Columbus. Petitioner, however, contends, citing Grand Island v. American Federation of State, County, and Municipal Employees, 186 Neb. 711, 185 N.W.2d 860 (1971), that the fact the employer has attempted to centralize its administrative functions really has very little to do with whether the employees have a community of interest.

In the Grand Island case, there is little indication of how the Supreme Court took into account the centralization of management function. There is, however, such an indication in Sheldon Station, supra. In Sheldon Station, the Supreme Court found two factors important in reviewing NPPD’s centralization of management functions. The first factor considered was that the central office retained final approval for hiring. While the Supreme Court noted that this factor may have been perfunctory in nature, it was still significant evidence to contribute to a holding for a system-wide unit. The second factor considered by the Supreme Court was that all personnel policies applied equally to all NPPD employees regardless of location. This factor also contributed to holding for a system-wide bargaining unit. Keeping in mind these two factors considered in the Sheldon Station case, we will now look at the evidence presented in the case before us.

In the instant case it is abundantly clear that there is strong centralized control over all of the fifty-one NPPD locations, including Cooper Nuclear Station. Final hiring decisions are made in Columbus, as well as any appeals for grievance procedures. Supply purchases, records and personnel records are kept in Columbus and all employee publications originate from and are distributed from Columbus. There is now a single accounting system, applicable to all NPPD business units. All corporate policies likewise apply equally to all business units. Committees, such as the Safe Committee, are developed and run through the central office in Columbus. All parts and supplies are purchased through Columbus. All NPPD locations are connected by a statewide communications network, and they all use a uniform software application known as SAP. The email system is also provided through corporate headquarters. All business units must follow uniform hiring policies. NPPD also has a system-wide internal Intranet, which has the employee handbook on-line. All final hiring decisions, including hiring for positions at Cooper Nuclear Station, must still be forwarded to the Columbus General Office for final approval.

The evidence demonstrates that little has changed in the twenty-four years since NPPD was last before the Nebraska Supreme Court in the Sheldon Station case. In fact, with the change in accounting practices, NPPD appears to be organized even more centrally than it was in 1979. In light of these facts, we must find this factor in the Respondent’s favor.

Mutuality of Interest in Wages, Hours, and Working Conditions

Respondent argues that because NPPD has a centralized system for wages, hours, benefits and labor policies, the Commission should not certify a less than system-wide bargaining unit of maintenance employees. Petitioner argues that the terms and conditions of employment are different for Copper Nuclear Station employees because of the extensive federal regulations.

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. Community of interest also plays a role in the National Labor Relations Board’s decisions in the private sector arena. The Board has also made community of interest decisions specific to nuclear power plants. For example, in International Brotherhood of Electrical Workers v. Baltimore Gas & Electric Co., 206 NLRB 199, 201 (1973), the Board noted that with regard to working conditions, the nuclear generating plants and their fossil fuel counterparts differed only in the means by which they produced the heat utilized in the first step of the generation process. The Board concluded that this distinction, while admittedly requiring different technology in nuclear plants, did not require a finding that the employees at a nuclear plant have a separate community of interest.

In the instant case, employees at Cooper Nuclear Station are required by federal law to be subjected to psychological screening, background checks, and random drug testing. All employees at NPPD are subject to centralized fitness for duty policies. Some employees, such as employees in the retail division, are also subjected to random drug testing. While federal law requires additional fitness for duty requirements for employees at Cooper Nuclear Station, the requirements are not so distinguishing to hold that CNS has such a difference in working conditions from other non-nuclear employees at NPPD.

Further, NPPD offers a standardized, district-wide procedure to establish compensation for employees. NPPD has a market-based pay system with 20 pay ranges. The NPPD Board of Directors determines the salary range and then categorizes the job profiles into pay grade zones. These pay grade zones are applied equally to all employees in the district. Employees are placed within that pay grade based on the individual’s experience and knowledge. Petitioner presented evidence at trial of a past wage and benefit survey for 2001-2002 conducted by Omaha Public Power District (OPPD). The survey shows generally higher minimum and maximum wage rates for nuclear employees as compared to non-nuclear employees. Other than the benefit and wage survey by OPPD there is no evidence to indicate that wages and benefits are not uniform throughout the District for the same level of skills. As a result of additional training imposed by federal regulations, CNS employees sometimes are paid at a higher wage level than another individual at a different plant performing similar work. Generally, however, all NPPD employees are subject to a standardized, district-wide procedure to establish compensation for employees. Furthermore, all fringe benefits, such as overtime policies, additional compensation and rest periods are centralized and can be applied consistently to all NPPD employees. All NPPD employees have the same health insurance, retirement plan, sick leave plan, and location policy.

The evidence presented at trial paints a picture of a fairly uniform practice of wages, hours and working conditions. While CNS employees are subject to several additional federal-mandated requirements, the evidence does not demonstrate that those requirements significantly affect the generally uniform pay-grades, hours and working conditions of the employees at CNS. Petitioner has not presented any evidence to distinguish the previous analysis delineated in the Sheldon Station case suggesting that the increased wages at CNS are not a result of higher training and skill for those nuclear employees. Therefore, regarding the issue of mutuality in wages, hours and working conditions, we find in Respondent’s favor.

Job Duties and Skills

Respondent maintains that employees in similar job positions throughout NPPD perform similar duties and maintain similar skills. Petitioner argues that because the maintenance employees at CNS work at a nuclear plant, their duties and skills are significantly different from other maintenance employees in the NPPD system.

In Sheldon Station, with regard to similarity of skills, the Nebraska Supreme Court stated that the Commission found that there was great similarity between the various plants. While the Commission noted in its original order that there were differences arising from the fact that the Cooper Station is nuclear, and often has higher compensation levels for the same job title, the evidence in the Sheldon Station case disclosed that the difference was due to the fact that Cooper Nuclear Station employees required higher training and skill to deal with the nuclear energy. Nevertheless, the Court found that all employees continued to operate within an overall statewide policy plan and individuals at the same level of job classification were paid the same wage throughout the District.

In this case, the evidence presented demonstrated that when employees perform maintenance work there is no significant difference in skill or the work involved between any of the plants. The mechanics at Cooper Nuclear Station perform the same family of work as the mechanics located at Gentleman, Sheldon and the Kearney/North Platte Stations and the I & C Technicians at Cooper Nuclear Station perform the same work as the E & I Technician at Sheldon. Likewise the Electricians at Cooper Nuclear Station carry out the same family of work as the Electrical Technician at the Gentleman and York Stations.

There was evidence presented at trial that indicated the Cooper Nuclear Station employees had to go through more fitness for duty requirements because of federal regulations for nuclear power. However, there is no change in the job function being performed. In addition, although one employee may be working with more dangerous products and is compensated accordingly, so long as his job skills are the same, there is no change in the job family. There was also evidence presented at trial that employees at CNS filled out, on a daily basis, more paperwork than their counterparts at the other NPPD locations. The ability to perform more paperwork does not change the actual skill set involved to perform the work, but instead speaks to the quantity of the work.

The evidence does not demonstrate that any additional levels of training and skills, or differences in job duties, were such that they create a separate community of interest for CNS employees. The employees included in the proposed bargaining unit have a community of interest with other employees throughout NPPD as they share similar job duties and similar skills to perform their jobs. Therefore, regarding the issue of job duties and skills, we find in Respondent’s favor.

Desires of Employees

The parties did not have any employees from the proposed Cooper Nuclear Station maintenance bargaining unit testify at trial. While the November 4, 2002 Clerk’s Report to the Commission indicates that the showing of interest was 73%, there is no direct testimony of the desires of employees. 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. Therefore, in light of the applicable rule of law and the lack of evidence presented to the Commission, we cannot decide this factor in either parties favor.

Extent of Employee Interchange

Respondent argues that NPPD employees interchange on both a permanent and a temporary basis at all the NPPD facilities, including Cooper Nuclear Station. Petitioner does not dispute that some interchange occurs, but argues that such interchange is minimal and insignificant.

The Commission found in 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), 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. Interaction is where two or more job classifications may correspond with one another in order to perform daily job duties.

While precise duties at each plant for a given job description may vary, the duties are sufficiently similar so that an employee in a given job description could function satisfactorily in the same job description at another plant with a minimum of training or badging. The evidence indicates that since 1997, 389 NPPD employees have permanently transferred to a new location within the system. Of those, thirty-five CNS employees transferred to a new facility and fifteen employees transferred to CNS. Furthermore, there is a fairly fluid flow of employees sent to work on special projects at other facilities on a temporary basis. When employees transfer to any facility, they must all undergo standard site-specific training. While employees are required to be "badged" at Cooper Nuclear Station, due to federal regulations, such additional requirements do not significantly affect the interchange of employees between the locations. Employees also routinely perform maintenance work at all of the power plants within NPPD’s system with little difficulty. The evidence at trial is clear. Employees interchange frequently and on a routine basis. Therefore on the issue of employee interchange, we must find this factor in Respondent’s favor.

Geographical Location

Petitioner argues that Cooper Nuclear Station is geographically removed from the NPPD locations. Respondent argues that the entire NPPD system is geographically proximate because all plants are located in the State of Nebraska.

In Sheldon Station, the Nebraska Supreme Court found that the plants, transmission, and distribution facilities, while scattered across the State of Nebraska from the eastern to the western border and from South Dakota to Kansas are interlocked with each other. The entire transmission system was dispatched out of a facility at Hastings, Nebraska and they held that the interconnectedness of the system was in favor of NPPD.

Currently, as in the Sheldon Station case, the NPPD system is interconnected through various networks and lines of power transmission. Today, the entire system is dispatched by the transmission system in Doniphan, NE. The evidence presented at trial demonstrates the geographic connection in every facet of the company, including how all locations are linked to one another. The factor of geographic location must be found in Respondent’s favor.

Policy Against Undue Fragmentation of Units

Respondent argues that while there is a strong presumption under Neb. Rev. Stat. § 48-838(2) to allow bargaining units of departmental size, the key concern is undue fragmentation of bargaining units. Respondent also claims that the entire NPPD system is essentially the "electric department" for the State of Nebraska. In this argument, Respondent further urges the Commission to follow the NLRB decision in International Brotherhood of Electrical Workers v. Baltimore Gas & Electric Co., 206 NLRB 199, 201 (1973), which states that system-wide units are the optimal appropriate unit within the public utility industry. Petitioner argues that while it is true the NLRB has such a preference for system-wide bargaining units, no such preference exists in Nebraska. Petitioner further urges the Commission to consider that system-wide is not the same as department-wide, which is delineated in § 48-838(2).

The Nebraska Supreme Court has repeatedly held that "[d]ecisions under the NLRB are helpful where there are similar provisions under the Nebraska statutes", Nebraska Pub. Emp. v. Otoe Cty., 257 Neb. 50, 63, 595 N.W. 2d 237 (1999) (quoting University Police Officers Union v. University of Neb., 203 Neb. 4, 12, 277 N.W. 2d 529, 535 (1979)). The National Labor Relations Board criteria for determining the appropriate bargaining unit also includes consideration of mutuality of interest in wages, hours, and working conditions in addition to the duties and skills of the employees, the extent of union organization among the employees, and the desires of the employees. Columbus Firefighter Ass’n v. City of Columbus, 4 CIR 103 (1979). The National Labor Relations Board standards for determining appropriate units stated that "the Board...seeks an employee group which is united by community of interest, and which neither embraces employees having a substantial conflict of economic interest nor omits employees sharing a unity of economic interest with other employees in the election or bargaining constituency." Service Employees International Union Local No. 226 v. Westside Community School District No. 66, 10 CIR 173, 175 (1989) (citing Gorman’s 1976 Labor Law, page 69).

It is true that the NLRB does have a preference for system-wide utilities. In Baltimore Gas, supra, the union sought a bargaining unit confined to the production and operation and maintenance employees at the Baltimore Gas and Electric Company’s Calvert Cliffs Nuclear Power Plant. The Board held that the evidence did not support a separate bargaining unit for the employees located at the nuclear power plant. The Board described the rationale for its view that in general, system-wide units were optimal in the utility industry:

As the parties are aware, the line of Board precedents developed for the public utility industry contains frequent expression of the Board’s view that a system-wide unit is the optimal appropriate unit in the public utility industry and of the strong considerations of policy which underlie that view. That judgment has plainly been impelled by the economic reality that the public utility industry is characterized by a high degree of interdependence of its various segments and that the public has an immediate and direct interest in the uninterrupted maintenance of the essential services that this industry alone can adequately provide. The Board has therefore been reluctant to fragmentize a utility’s operations. It has done so only when there was compelling evidence that collective bargaining in a unit less than system-wide in scope was a "feasible undertaking" and there was no opposing bargaining history. As an examination of the cases in which narrower units have been found appropriate indicates, it was clear in each case that the boundaries of the requested unit conformed to a well-defined administrative segment of the utility company’s organization and could be established without undue disturbance to the company’s ability to perform its necessary functions.

206 NLRB at 201. See also, e.g. New England Telephone Co., 280 NLRB 162, 164, 122 LRRM 1202 (1986) (the Board has long held that in public utility industries a system-wide unit is optimal). The Board further noted that the petitioner’s theory (because the employees therein described all worked at the employer’s only nuclear power plant, they have interest so unique as to compel the Board's departure from the precedents previously developed for the utility industry) was not supported by the record as a whole. Therefore, the Board accordingly held that the requested unit was not appropriate for the purposes of collective bargaining, dismissing the Petition.

Alternatively, in International Brotherhood of Electrical Workers Local 94 and Utility Workers v. PECO Energy Co., 322 NLBR 1074 (1997), the unions sought to represent a variety of different bargaining units at a variety of PECO locations, including both nuclear and non-nuclear locations. These representation cases were consolidated into one case. In PECO Energy Company, the Board held that the general rule in favor of system-wide units for public utilities does not operate as an absolute prohibition of smaller units. The Board stressed that PECO, through its own reorganization, had identified the power generation group as a well-defined administrative segment of the organization that could justify a smaller than system-wide unit. The Board found the same to be true of the nuclear generation group, issuing its decision based on the evidence presented at trial. The record at trial emphasized the significant changes instituted by PECO at the two nuclear locations. The Board discussed at great length the reorganization explained to the PECO nuclear employees through the company newsletter. Furthermore, the Board stressed that with the reorganization the two locations were designed to operate as individual autonomous profit centers.

While the PECO decision upheld a less than system-wide bargaining unit, both Baltimore Gas and PECO are not at all incongruent and can be both applied appropriately to the instant case. The standard equally applied in both cases focused heavily on the evidence presented at trial. PECO departs from the general rule of law in Baltimore Gas because the evidence presented at trial supported an autonomous bargaining unit. In the instant case, unlike PECO, there is no compelling evidence that NPPD has created an autonomous bargaining unit at Cooper Nuclear Station. While NPPD may have had negotiations with Nuclear Management Company about possible changes in organization structure, none of these organizational changes have occurred. To adopt the position advocated by Petitioner would require the Commission to make assumptions regarding the future of CNS which are not supported by the evidence. Such a decision would be improperly based upon speculation or conjecture. See Lincoln Firefighters Ass’n v. City of Lincoln, 198 Neb. 174, 252 N.W.2d 607 (1977). We cannot support our decision on conjecture of what might happen to the maintenance employees at the Cooper Nuclear Station in the coming years at NPPD. Furthermore, Cooper Nuclear Station does not function autonomously in the same manner as the nuclear generating group in PECO. NPPD centrally manages all fifty-one locations through its corporate headquarters in Columbus, NE, including Cooper Nuclear Station. Labor relations policies are centrally determined and administered and provide for uniform job classifications, pay grade, and benefit privileges for all employees, wherever they are located. Unlike the nuclear generation group in PECO, the human resource manager in Columbus supervises all disciplinary actions for all NPPD employees. Therefore, Cooper Nuclear Station clearly would not fit into the exception carved out by the NLRB in PECO.

Finally, in order to determine if the creation of 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, supra, 198 Neb. at 259, 253 N.W.2d at 9-10 (emphasis in original). Fragmented units interfere with the continuous operational efficiency of governmental services and should, therefore, be avoided to the extent that it is consistent with the preservation of the rights of public sector employees to engage in collective bargaining.

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. Petitioner contends the approval of the proposed unit will not promote undue fragmentation, nor will it harm NPPD. If this rationale of Petitioner is correct with regard to the Cooper Nuclear Station, then of necessity we could be compelled to recognize, as an appropriate bargaining unit, the Gerald Gentleman Station with nineteen maintenance employees, the Sheldon Station with twelve maintenance employees, the Columbus location with seven maintenance employees, the Kearney location with two maintenance employees, and the Scottsbluff Station with three maintenance employees. We do not believe that such a decision would be in keeping with the dictates of the law nor with the intent of the Legislature to prevent undue fragmentation.

We conclude that the limited unit requested by Petitioner herein is not appropriate. We base our decision on the public policy against fragmented units, the application of the criteria of § 48-838, the application of the criteria established by the Nebraska Supreme Court in City of Grand Island v. American Federation of State, County and Municipal Employees, 186 Neb 711 (1971) and Sheldon Station decision, supra, and the evidence presented in this case.

The logic of the Sheldon station decision, as expressed by the Nebraska Supreme Court, appears to apply with equal validity to the case now before us, and we must, therefore, on the issue of "fragmentation", find in the Respondent’s favor.


We will not determine the issue of whether the operations and maintenance department employees should be in the same proposed bargaining unit because the proposed bargaining unit is not an appropriate unit.


The Cooper Nuclear Station maintenance employees are part of a larger group of maintenance employees in the NPPD system, and are essential to NPPD’s goal of providing electricity to their customers. While Cooper Nuclear Station does have some differences due to the fact that Cooper Station is nuclear, we must constantly be aware of Nebraska’s public labor laws, recognizing that fragmented units interfere with the delivery of electricity to all NPPD customers. We conclude that the bargaining unit requested by Petitioner herein is not appropriate. The Commission, therefore, finds in Respondent’s favor and denies Petitioner’s request to create a single bargaining unit for the maintenance employees at Cooper Nuclear Station.

IT IS THEREFORE ORDERED that the Petition is hereby dismissed.

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

Entered April 16, 2003.