14 CIR 232 (2003)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 APPEARANCES:

The Service Employees International Union Local 226 (hereinafter, "Petitioner" or "Union"), filed a Petition on March 31, 2003, seeking to certify a bargaining unit consisting of: "All regular full-time and part-time employees in the Respondent Maintenance, excluding supervisors and clerical employees."

The Papillion Public Schools (hereinafter, "Respondent" or "District") filed an Answer to the Petition on May 23, 2003. The Answer asserted that the duties of the employees in the proposed bargaining unit were so different as to make different bargaining units appropriate.

The Commission of Industrial Relations (hereinafter, the "Commission") conducted a Preliminary Proceeding on June 10, 2003, and held a Pretrial Conference on June 25, 2003.

The Trial was held on July 14, 2003. Pursuant to a stipulation set forth at time of trial, the sole job classifications at issue to be included in the proposed bargaining unit were the heating, ventilation and air-conditioning (HVAC) technical position, electrician position, and the general maintenance groundskeeper position.

FACTS:

The Commission finds the following facts to be true. The District is located in Papillion, Nebraska. Papillion is the seventh fastest growing school district in the state of Nebraska. The District plans to open one new high school and one new elementary school. The District educates students and runs its operations in twenty-three separate buildings. The District also has nine football fields, including the Monarch stadium facility and the various junior and senior high school football fields. The District also maintains several soccer fields, a track facility, and two baseball fields.

The Petitioner seeks to create a bargaining unit including all personnel in the Respondent’s maintenance department, excluding supervisors and clerical employees. There are approximately sixteen employees in the proposed bargaining unit. These sixteen employees are employed in eleven positions. These positions include one plumber, four HVAC technicians, one general maintenance grounds, one general maintenance plumber, one general maintenance electrician assistant, one general maintenance building technician, one shop foreman, two locksmiths, one electrician, one carpenter, and two groundskeepers. All eleven positions in the maintenance department are currently filled. Of these eleven positions, the Respondent desires to separate three positions, with a total of seven employees, from the other eight positions (hereinafter, "general maintenance employees"). These positions are HVAC technician, groundskeeper, and electrician (hereinafter, "licensed/skilled" positions).

All maintenance personnel in the proposed bargaining unit work a twelve-month contract.

Maintenance personnel have common essential functions. Maintenance personnel perform general maintenance, plumbing, carpentry, or electrical maintenance work for the District-owned facilities. All employees in the proposed maintenance unit receive their work orders from a central location (the Buildings and Grounds Building) that also houses their time cards and work desks. All maintenance personnel have one morning, lunch, and afternoon break, which they take either at the central building or at their job site, depending upon the nature of their current project.

Maintenance personnel all report to and are evaluated by the Supervisor of Maintenance Services, David Harrill. All maintenance personnel must have a high school diploma. Most of the maintenance personnel are required to have additional training or experience in their particular area of maintenance. Four positions require an additional license by the District. Those positions are electrician, HVAC technician, plumber and groundskeeper. All sixteen employees must carry a valid Nebraska State Driver’s license. All maintenance personnel accumulate vacation and sick leave in the same manner. All the maintenance personnel must report their absences to David Harrill.

All sixteen employees are part of the District’s snow removal crew and can operate snow and ice-control equipment. All sixteen are also expected to perform general maintenance support functions together, working side-by-side as directed by their supervisor.

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

DISCUSSION:

In reaching a decision under Neb. Rev. Stat. § 48-838, 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 employees; fragmentation of units; established policies of the employer; and statutory mandates to assure proper function and operation of governmental service. See Sheldon Station Employees Ass’n v. Nebraska Public Power Dist., 202 Neb. 391, 275 N.W. 2d 816 (1979) ("Sheldon Station"). In analyzing those relevant factors when determining the appropriateness of a proposed bargaining unit, the Nebraska Supreme Court has found that the requirements in the statute are not exclusive. 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").

Applying the benchmark set forth in Sheldon Station, 202 Neb. at 402, the evidence supports a finding that a bargaining unit consisting of all eleven maintenance positions is appropriate.

COMMUNITY OF INTEREST:

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; see also City of Grand Island v. AFSCME, 186 Neb. 711, 185 N.W.2d 860 (1971); 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").

The Petitioner contends that all the maintenance personnel in the proposed unit share a strong communality in working conditions. The Respondent argues that there is no mutuality of interest in wages of the three workers identified as licensed/skilled employees.

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.

In the instant case, all sixteen of the maintenance employees work a 12-month contract.

All maintenance personnel must have a high school diploma. Most of the maintenance personnel are required to have additional training or experience in their particular area of maintenance. All sixteen employees must carry a valid Nebraska State Driver’s license.

All maintenance personnel report to and are directed by the same supervisor, David Harrill. All sixteen employees have the same fringe benefits, work out of the same facility, and are subject to the same labor relations policy for the adjustment of grievances. The evidence presented at trial clearly suggests a strong communality in hours and working conditions.

The Respondent further argues that because the licensed/skilled employees are paid more, the Commission should find that the employees do not share a common interest in wages. The Respondent suggests that the Commission should follow its decision in McCook, 13 CIR at 49. On the other hand, the Petitioner argues that even if a difference in pay does exist, the plumber, who is stipulated to be in the bargaining unit, would also share a similar percentage difference in pay from the other general maintenance employees.

The Commission held in McCook that a single unit for all classified employees was not appropriate. The Commission made this determination from evidence presented from the District’s Employee Handbook, in which the District had already separated the classified employees, by discipline. This fact, along with a host of other evidence, strongly suggested the need for separate bargaining units of two or three groups of classified employees. Furthermore, the Commission has also held that higher wage rates are not alone persuasive in representation cases. See International Brotherhood of Electrical Workers, Local Union No. 2025 v. Nebraska Public Power District, 14 CIR ____ (2002) ("NPPD"), (the Commission found that it was not appropriate for a unit of higher paid Cooper Nuclear maintenance employees to be separated from the NPPD maintenance employees as a whole).

In the instant case the Commission has only minimal testimony by the maintenance supervisor indicating a difference in pay. The Commission does not have any direct evidence from an employee handbook similar to the evidence presented in McCook or district pay scale to indicate the significance of such a difference in pay. Like NPPD, the Commission is considering the Respondent’s desire to separate one discipline into two smaller groups, where the difference in wage is only one small factor in deciding if a community of interest exists. Like NPPD, the difference in wages is most likely due to a difference in training and skill, as discussed below, between the licensed/skilled employees and the general maintenance employees. The Commission does not find the minimal testimony of a difference in wages persuasive. Therefore, regarding the issue of mutuality in wages, hours and working conditions, we find in the Petitioner’s favor.

The Petitioner contends that the job duties and skills of all the sixteen employees are similar. The Respondent argues that the job duties between the District’s general maintenance employees and the licensed/skilled employees are significantly different.

The general maintenance employees perform the same family of work as the licensed/skilled employees at the District. All sixteen employees are part of the District’s snow removal crew and can operate snow and ice-control equipment. Both the general maintenance employees and the licensed/skilled employees have also participated in lawn mowing on an as- needed basis. All sixteen are also expected to perform general maintenance support functions together, working side-by-side as directed by their supervisor. The nature of maintenance work requires both general maintenance employees and licensed/skilled employees to work together on common projects.

A significant amount of emphasis at trial was placed on the fact that the District requires licensing for four of its eleven positions. The Respondent contends that these additional licensing requirements change the nature of the HVAC technician, the electrician, and the groundskeeper positions. The fourth licensed position, the plumber, was stipulated by both parties as a part of the appropriate bargaining unit, even though the job description requires the plumber to be licensed.

The Commission cannot find any case law indicating additional licensure, standing alone, prohibits these four positions from being certified within the same bargaining unit. In fact, the Commission finds to the contrary. In NPPD, the Commission found that additional levels of training and skills did not create a separate community of interest for employees at the Cooper Nuclear Station. See NPPD, 14 CIR at ____. In the instant case, it is clear that while three positions require additional levels of training, such requirements do not significantly change the job function being performed. All sixteen employees consistently work together on jobs using similar skills as they are required to do so by the District’s own job descriptions. The licensed/skilled employees included in the proposed bargaining unit have a community of interest with other employees in the general maintenance department as they share similar job duties and similar skill sets to perform their jobs.

The Respondent also argues that if the Commission finds the licensed/skilled distinction appropriate, it can also exclude the fourth licensed employee position (the plumber). The Commission finds this argument lacks merit, particularly in view of the fact that the Respondent has stipulated that the plumber should be appropriately found in the bargaining unit of sixteen employees. Therefore, regarding the issue of job duties and skills, we find in the Petitioner’s favor.

There was no evidence presented at trial from which the Commission can determine the existence of any previous organization of the proposed bargaining unit members. Without such evidence, we find that this factor does not impact our decision in establishing a single bargaining unit for the eleven positions in the District’s maintenance department.

The Petitioner argues that the licensed employees desire to be part of the overall bargaining unit sought by the Petitioner. The Respondent argues that there was no showing that the employees in the licensed/skilled positions, other than the electrician, desired to be placed in the unit proposed by the Union.

At trial, there was no testimony of the desires of the employees as to the proposed three non-stipulated positions to be included in the proposed bargaining unit. While the May 12, 2003, Clerk’s Report indicates that the showing of interest was fifty-six percent (56%), there is no evidence of the desires of the 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.

The Petitioner argues that employee interchange occurs between the general maintenance employees and the licensed/skilled employees. The Respondent maintains that while the employees interact, no interchange between the general maintenance employees and the licensed/skilled employees occurs within the District.

The Commission found in McCook, that interaction is not the test used for community of interest, but rather, the Commission considers only employee interchange. 13 CIR at 350. 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.

In the instant case, while the electrician is on vacation, the electrician’s assistant regularly performs many duties of the electrician. Even though the assistant cannot perform every duty of the electrician, interchange occurs when the electrician’s assistant performs the electrician’s work. Furthermore, the groundskeeper, as part of his job responsibilities under his job description, is required to maintain and care for all turf areas, which include cutting and trimming grass. The testimony indicates that other maintenance workers, including other licensed/skilled workers such as the electrician have in the past helped maintain the District’s turf areas. The three disputed licensed/skilled employee positions clearly interchange with the other general maintenance employees, as they perform general maintenance functions on a regular and frequent basis for such occurrences as snow removal. While all sixteen employees do not have state licenses to allow them to legally perform every single duty the licensed employees can, another licensed employee cannot necessarily perform that specific duty either. For example, a licensed electrician cannot legally administer pesticide, and a groundskeeper cannot necessarily wire a building. Such limited requirements that would force interchanging employees to perform every specific duty the other employee performs would cause unnecessary fragmentation of bargaining units. The evidence at trial is clear. Employees in the proposed bargaining unit interchange frequently and on a routine basis. Therefore, on the issue of employee interchange, we must find this factor in the Petitioner’s favor.

The Petitioner asserts that the policies of the school district weigh in favor of establishing a single bargaining unit in that there is a common handbook for all non-classified employees. The Respondent argues that the handbook also covers all non-teaching employees, including members of another unionized bargaining unit and several other non-unionized employee classifications.

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, 253 N.W.2d at 9-10. 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.

In the instant case, the District has established uniform policies applicable to all sixteen employees in the proposed bargaining unit. Both the testimony regarding the employee handbook and the submitted evidence of the eleven job descriptions, delineate a practice whereby the District groups all of these eleven positions together into one unit. For example, all benefits such as sick leave and vacation leave are the same for all sixteen employees. All sixteen employees report to the same supervisor and all sixteen employees follow the same grievance procedure. Therefore, regarding the issue of established policies of the employer, we find in the Petitioner’s favor.

The Petitioner argues that separating employees based on licensing would justify that which the Neb. Rev. Stat. § 48-838 (Reissue 1998) prohibits, namely undue fragmentation. The Respondent argues that it does not believe the Union has presented enough evidence that undue fragmentation will negatively impact the District’s desire to have two bargaining units.

The public policy provisions under Neb. Rev. Stat. § 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 District 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, 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 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, sixteen maintenance employees in eleven positions desire to form a single bargaining unit. The District wishes to separate out three of those positions, with a total of five employees. If this rationale is correct and the Commission were to certify the District’s proposed units, it would create a unit of seven employees and a unit of nine employees.

The Respondent further argues that there would be no burden on the school board with an additional bargaining unit, citing International Brotherhood of Electrical Workers, Local 265 v. Panhandle Rural Electric Membership Ass’n, 11 CIR 32 (1990).

In the case before us, the evidence shows that the creation of multiple bargaining units would interfere with the continuous operational efficiency of instructional services in the District as it would create undue fragmentation. Fragmentation should not occur when a bargaining unit clearly shares a mutuality in wages, hours and working conditions, in job skills and duties, in interchange of employees and in established policies of the employer. Unlike International Brotherhood of Electrical Workers, Local 265 v. Panhandle Rural Electric Membership Ass’n, 11 CIR 32 (1990), the community of interest is not divergent between the maintenance employees of the Respondent. The presumption in favor of departmental size units is rebutable where one unit of outside employees possesses totally different skills and performs totally different tasks. In the instant case, both the general maintenance employees and the licensed/skilled employees possess similar if not, in certain circumstances, identical skills, as on a daily basis they all join together to complete their assigned projects and on a yearly basis they all perform snow removal together.

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 Petitioner’s favor on the issue of "fragmentation."

CONCLUSION:

The District’s sixteen maintenance employees as a group are essential to the proper functioning of the District’s twenty-three facilities. While four positions do have some differences in licensing requirements for employment, we must constantly recognize that fragmented units interfere with the proper functioning of the District’s twenty-three facilities. We conclude that the bargaining unit requested by the Petitioner herein is appropriate. The Commission hereby finds that the positions of electrician, HVAC technician, and groundskeeper should be appropriately placed in the unit with the other eight stipulated positions. The appropriate bargaining unit consists of: "All regular full-time and part-time employees in the Respondent Maintenance, excluding supervisors and clerical employees."

IT IS THERFORE ORDERED:

A secret ballot election within the above-described unit be conducted within a reasonable time from the date of this decision.

All panel judges join in the entry of this Order.

Entered September 8, 2003.