14 CIR 242 (2003)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 APPEARANCES:

Kimball Education Association (hereinafter, "Petitioner" or "Association"), filed a petition to certify a bargaining unit consisting of, "all non-administrative certificated employees employed as teachers, counselors and nurses (the ‘Bargaining Unit’)".

Kimball County School District (hereinafter, "the District" 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 teachers, counselors, and the nurse, to warrant their inclusion into a single bargaining unit.

The Commission finds the following facts to be true. Since 1987, the Kimball Education Association (KEA) has negotiated on behalf of the teachers as well as the school nurse. The Association currently represents 58 employees, which include teachers, counselors, and the school nurse. The Association could represent a total of 60 employees, including the secondary counselor and the program coordinator who are not currently members of the KEA, as well as the portion of several administrative supervisors’ salary that relates to their teaching duties. For example, the KEA bargains for twenty-two percent of Kenneth Smith’s salary. Kenneth Smith’s main job title is Activities Director, however, he teaches two class periods and the KEA bargains for a portion of his total salary. Kelly Tofflemire was also removed from the bargaining unit two years ago because his job duties changed from teaching to a Technology Coordinator. However, during the 2002-2003 contract year, the KEA negotiated for one period of his salary. During that one period, he maintained his normal teaching duties.

In this case, the sole issue is the appropriateness of the job position of counselor and the job position of school nurse in the established bargaining unit. We will accordingly limit our factual discussion to those two job positions.

School Nurse

For the 1987 contract year, the KEA and the District created a new salary schedule for the newly hired school nurse because the new nurse’s credentials were different from those of the previous school nurse. The District created a separate nurse’s salary schedule keyed off of the teachers’ salary schedule in increments for longevity and an index of .04. The school nurse receives ninety percent of Step I of the teachers’ salary schedule. The present school nurse has been on this salary schedule for the past nine years. The nurse’s contract is created from a teacher’s contract.

The current school nurse has a special services certificate from the Nebraska Department of Education. The school nurse also has a RN degree and a nurse practitioner’s certificate. The nurse works in the District’s two elementary buildings and one junior-senior high school building. She rotates between the three buildings every day. On a daily basis, the nurse participates with the teachers on the Individual Education Plans (IEP) team and on the Student Assistant Team (SAT). She also participates in parent-teacher conferences. The nurse has the same health insurance plan as the teachers. The nurse works the same hours a day (8:00 a.m. - 4:00 p.m.) along with the same school calendar days as the teachers. The nurse, like the teachers, would also be expected to work a couple of days before the first day of school. The school nurse also teaches a fifth-grade growth and development short course and a nutritional class in second grade. The nurse, also on occasion, goes into the classroom to observe children and evaluate their behavior for such conditions as attention deficit disorder.

The nurse is required to attend the same staff meetings as the teachers and serves on the District’s crisis team and safety committee. She is not required to attend administrators’ meetings. Both the school nurse and the teacher make home visits to families who may need assistance for special health needs, as well as providing health information. She is evaluated by the three school principals, using the same evaluation form that is used to evaluate the teachers who work in those buildings. The nurse cannot evaluate, hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, discipline, direct, adjust grievances, or effectively recommend teachers in any of the above said actions.

The school guidance counselors cannot evaluate, hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, discipline, direct, adjust grievances, or effectively recommend teachers in any of the above said actions. The counselors work the same hours a day (8:00 a.m. - 4:00 p.m.) along with the same school calendar days as the teachers. The counselors, like the teachers, would also be expected to work a couple of days before the first day of school. The counselors have the same health insurance as the teachers. The building principals supervise both the counselors and the teachers. The counselors must attend staff meetings and serve on staff committees as required.

The guidance counselors also work hand-in-hand with teachers in the assessment and diagnosis of the individual educational needs of the students, especially students that have special needs. The guidance counselors are responsible for achievement testing of students. Both the teachers and the guidance counselors interpret the scores of the achievement tests. The counselors also teach a career exploration class.

The guidance counselors are part of the IEP and SAT teams, and any other team that would work in a manner to assist students with special needs. The counselors counsel with colleagues, students, and parents on a regular basis. Both teachers and counselors must provide academic counseling to help the students achieve academic success. The counselors, like teachers, must make themselves available to students and parents for educational-related purposes during the instructional day. Both teachers and counselors must also work to establish and maintain open lines of communication with students and their parents concerning both the academic and behavioral progress of all assigned students. Counselors and teachers are responsible for building-wide supervision of students. Both teachers and counselors must maintain an up-to-date inventory of all equipment and materials within their assigned areas.

Several policies and procedures of the District are applicable to teachers, counselors and the nurse. Examples of those policies and procedures are professional growth, general teacher evaluation, child abuse reporting, reduction in force, and staff absences. Furthermore, the school counselors, the school nurse, and the teachers all serve on the same child protection team. All three of these job positions counsel with colleagues, students, and parents on a regular basis.

There have been no problems for either the District in negotiating with, or the Association in negotiating on behalf of, the school nurse and the school counselors during the past sixteen years. Other relevant facts will be discussed in the analysis of the various factors to be considered in certifying a bargaining unit.

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 Delperdang v. United Electrical, Radio, and Machine Workers of America, 13 CIR 400 (2001)("Delperdang"). 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 central public policy in Nebraska public sector labor law as expressed in § 48-802 is "the continuous, uninterrupted and proper functioning and operation" of governmental service. This public policy underpins the Commission’s desire to maintain continuity and stability in bargaining units, absent reason for disruption or alteration of the status quo. The importance of this policy consideration is underscored by the requirement that the Commission "shall consider established bargaining units and established policies of the employer." In determining the appropriateness of an existing collective bargaining unit, the Commission must consider the evidence while giving due regard to this important and long established public policy.

The Commission is called upon to make a factual determination regarding the appropriateness of including the nurse and the counselor in the previously voluntarily recognized bargaining unit. As previously stated, the District seeks to remove the counselors and the nurse based on the administrative status of the nurse and the general lack of community of interest between the counselors and the nurse and the teachers. The Association, conversely, seeks the continued inclusion of the nurse and the counselors in the bargaining unit.

In both Nebraska State Patrol v. State Troopers Ass’n, 9 CIR 37, 42 (1987) and Delperdang, 13 CIR 400 (2001), the Commission determined the burden of proof and persuasion is on the party seeking modification of an existing collective bargaining unit. The party must establish by a preponderance of the evidence facts which demonstrate that it is entitled to the modification sought. While both these cases deal with amending a formally certified bargaining unit in front of the Commission, the Commission finds these cases to be persuasive on this long-standing voluntarily recognized bargaining unit. The District has voluntarily recognized the bargaining unit in question for the past sixteen years. Furthermore, historically, compared to the number of school districts in the State of Nebraska, there have been relatively few formal certifications in front of the Commission for bargaining units of certificated K-12 staff. The long-standing and successful labor relations’ history between the Respondent and the Petitioner exemplify the policy consideration in § 48-802. In light of the facts presented in this particular case, the District has the burden of proving that the nurse and the counselors are, in fact, administrators, and do not share a community of interest with the teaching staff, and therefore are properly excludable from the current unit.

The Respondent argues that because a nurse is defined as an administrator under Neb. Rev. Stat. § 79-101(10), the Commission should not include the nurse in the bargaining unit. The Petitioner argues that the statutory definition of a nurse as an administrator in Neb. Rev. Stat. § 79-101(10) does not obligate the Commission to treat the nurse as an administrator. The Petitioner also argues that the Commission’s jurisdiction is found in Chapter 48 (§ 48-801(9)) - not Chapter 79.

The Commission directs its attention to Section 79-101, R.R.S. 1943, which contains definitions of "teacher," "administrator," and "teach." These definitions are as follows:

79-101 .... (9)Teacher means any certified employee who is regularly employed for the instruction of pupils in the public schools; (10) the term teacher shall mean any certified employee, who is regularly employed for the instruction of pupils in the public schools; (11) the term administrator shall mean any certified employee such as superintendent, assistant superintendent, principal, assistant principal, school nurse or other supervisory or administrative personnel who does not have as a primary duty the instruction of pupils in the public schools; ... (13) the term teach shall mean and include, but not be limited to, the following responsibilities: (a) The organization and management of the classroom or the physical area in which the learning experiences of pupils take place, (b) the assessment and diagnosis of the individual educational needs of the pupils, (c) the planning, selecting, organizing, prescribing, and directing of the learning experiences of pupils, (d) the planning of teaching strategies and the selection of available materials and equipment to be used, and (e) the evaluation and reporting of student progress.

The Commission also recognizes the definition of supervisor in Neb. Rev. Stat. § 48-801(9), which is as follows:

Supervisor shall mean any employee having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not a merely routine or clerical nature, but requires the use of independent judgment.

The Commission has in the past considered the relevance of § 79-101(9) to the Commission. See Millard Education Ass’n v. The School District of Millard ("Millard"), 5 CIR 447 (1982). Appealed, 214 Neb 895, 336 N.W.2d 587 (rev’d on lack of jurisdiction). In Millard, the Commission found that while it is clear that the term "administrative employee" no doubt has different meanings in other employee contexts, the parties in Millard drew their proposed bargaining unit descriptions against the background of § 79-101. The Commission cautioned that drawing a unit boundary between teachers and administrative employees was not the only way a bargaining unit in elementary and secondary schools could be defined; however, in view of the parties’ agreement that administrative employees should be excluded and in the absence of any other discernible meaning of the term, the Commission utilized § 79-101(10) in its decision. The Commission did not, however, use § 79-101 as a sole basis in determining the composition of the proposed bargaining unit. Instead, as to the administrative employee exclusion, the Commission focused on two issues: (1) whether or not an employee position in dispute fell within the administrative employee definition and (2) if it did, whether or not exclusion of that employee position resulted in an inappropriate unit under the community of interest factors delineated in AAUP.

It is clear that in the instant case, the term "administrative employee" no doubt has different meanings in other employee contexts. While the parties in Millard drew their proposed bargaining unit descriptions against the background of § 79-101, the parties here do not agree on the application of §79-101(10) to these proceedings. Even though § 79-101(10) defines the school nurse as an "administrator", the Commission does not find this particular statute has primary bearing on whether or not the nurse should be in the proposed bargaining unit. Instead, the Commission must focus on the definitions within Chapter 48 to determine if the "administratively" defined nurse is a "supervisor" under § 48-801(9).

The evidence presented at trial indicates that the nurse cannot evaluate, hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, discipline, direct, adjust grievances, or effectively recommend teachers in any of the above said actions. Furthermore, the nurse is evaluated by the three school principals, using the same evaluation form that is used to evaluate the teachers who work in those buildings. These facts attest that the nurse is indeed not a supervisor under § 48-801(9).

Therefore, the Commission does not find § 79-101(10) is determinative in its decision. While the Commission will not, in this case, use § 79-101(10) in its determination, the Commission must still determine herein whether or not the school nurse and the counselors share a community of interest under the factors outlined in AAUP.

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 Respondent argues that the counselors and the school nurse do not share any significant mutuality of interest in wages, hours, and working conditions with the teachers in the bargaining unit. The Petitioner argues that the wages, hours, and working conditions are similar.

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, the nurse’s salary schedule has been keyed off of the teacher’s salary schedule in increments for longevity and an index of .04 for the past nine years. The nurse’s contract is directly created from a teacher’s contract. The nurse works in the District’s two elementary buildings and one junior-senior high school building as do all of the teachers. The nurse has the same health insurance plan as the teachers. She is evaluated by the three school principals, using the same evaluation form that is used to evaluate the teachers who work in those buildings. The nurse works the same hours a day (8:00 a.m. - 4:00 p.m.) as well as the same school calendar days as the teachers.

The counselors also work the same hours a day (8:00 a.m. - 4:00 p.m.) along with the same school calendar days as the teachers and the nurse. The counselors have the same health insurance as the teachers and the nurse. The building principals also supervise the counselors. Policies and procedures such as professional growth, general teacher evaluation, child abuse reporting, reduction in force, and staff absences are applicable to all the teachers, the counselors and the nurse, as has been the negotiated Agreement since 1987.

The Respondent further argues that because the nurse is paid ninety percent of a teacher’s salary, the Commission should find that the nurse does not share a common interest in wages. The Respondent suggests that the Commission should follow its decision in McCook, 13 CIR at 49.

The Commission has held that higher wage rates are not alone persuasive in representation cases. See Service Employees International Union Local 226 v. Papillion Public Schools, 14 CIR ___ (2003); 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 only has testimony regarding the nurse, indicating a difference in pay. The desire to separate the current bargaining unit into three smaller groups, where there is a difference in wages, is only one small factor in deciding if a community of interest exists. Like NPPD, the difference in wages is due to a difference in education, between the teachers and the school nurse. Contrary to the Respondent’s argument, the Commission does not find the testimony of a difference in wages for the nurse by ten percent persuasive. Instead, the Commission finds this evidence is persuasive under established policies of the employer.

Therefore, regarding the issue of mutuality in wages, hours and working conditions, we find in the Petitioner’s favor.

The Respondent argues that the job duties between the District’s nurse, counselors and teachers are significantly different. The Petitioner contends that the job duties and skills of all the sixty employees are similar.

On a daily basis, the nurse participates with the teachers on the Individual Education Plans (IEP) team and on the Student Assistant Team (SAT). The nurse also participates in parent-teacher conferences. The school nurse also teaches a fifth-grade growth and development short course and a nutritional class in second grade. The nurse, on occasion, goes into the classroom to observe children and evaluate their behavior for such conditions as attention deficit disorder.

The nurse is required to attend the same staff meetings as the teachers and serves on the school’s crisis team and safety committee. She is not required to attend administrators’ meetings. Both the school nurse and teachers make home visits to families who may need assistance for special health needs, as well as providing health information.

The counselors must attend staff meetings and serve on staff committees as required. The guidance counselors also work hand-in-hand with teachers in the assessment and diagnosis of the individual education needs of the students, especially students that have special needs. The guidance counselors are responsible for achievement testing of students. Both the teachers and the guidance counselors interpret the scores of the achievement tests. The counselors also teach a career exploration class.

The guidance counselors are part of the IEP and SAT teams, and any other team that would work in a manner to assist students with special needs. The counselors counsel with colleagues, students and parents on a regular basis. Both teachers and counselors must provide academic counseling to help the students achieve academic success. The counselors, like teachers, must make themselves available to students and parents for educational-related purposes during the instructional day. Both teachers and counselors must also work to establish and maintain open lines of communication with students and their parents concerning both the academic and behavioral progress of all assigned students. Counselors and teachers are both responsible for building-wide supervision of students. Both teachers and counselors must maintain an up-to-date inventory of all equipment and materials within their assigned areas.

Furthermore, the school counselors, the school nurse, and the teachers all serve on the same child protection team. All three of these job positions counsel with colleagues, students and parents on a regular basis.

While the nurse is not regularly employed for the instruction of students, the nurse does share some like duties and skills with teachers and counselors. Likewise, while counselors on a daily basis are not regularly employed for the instruction of students, they do share a multitude of like duties and skills with teachers and the nurse.

Not only does the Respondent argue that the skills of the nurse and the counselors are not similar to the skills performed by the teachers, but the Respondent also argues the Millard case supports the nurse not belonging in a bargaining unit with the teachers. 5 CIR 447 (1982). The Petitioner maintains, however, that Millard’s impact is not applicable to the instant case.

In Millard, the Association sought a determination of an appropriate bargaining unit and election pursuant to Neb. Rev. Stat. § 48-838. The unit claimed appropriate by the Petitioner was "all certificated teachers employed by the School District except administrative employees." The Association sought to not only include all the certificated teachers defined under § 79-101 (10), but also the school nurses, counselors, school psychologists, head teachers, lead teachers, department heads, assistant athletic directors, and intramural directors. The Commission held that, based on the evidence presented at trial, the counselor should be included in the bargaining unit and the nurse should not be included in the bargaining unit. The Commission felt the counselor should be included in the bargaining unit because the evidence indicated they dealt directly with pupils in the "assessment and diagnosis of educational needs of pupils," as set forth in § 79-101(13)(b). The counselors worked directly with students in solving their educational problems. The counselors also were paid according to the teacher index salary schedule, received the same benefits as the teachers, and had been included in the bargaining unit in the past. On the other hand, while the nurses received the same fringe benefits as the teachers, they had no teaching duties, were not paid on the basis of the teachers’ salary index schedule and had never been considered part of the bargaining unit.

In the instant case, the facts presented at trial regarding the nurse were completely different than the facts presented at trial in Millard. Unlike Millard, the nurse at Kimball is paid off of the teachers’ salary schedule, has been considered part of the bargaining unit for the past sixteen years, and has taught several health-related courses to students. The counselors in the instant case perform identical duties and have similar skills to the counselors in Millard.

Therefore, regarding the issue of job duties and skills, we find in the Petitioner’s favor.

The Respondent asserts that the established policies of the employer and the practices of the Association support the creation of several bargaining units. The Petitioner maintains that the established policies of the employer make a strong showing to warrant the inclusion of the school nurse and the counselors in the bargaining unit.

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, since the 1987 contract year, the KEA and the District created a new salary schedule for the school nurse because the new school nurse’s credentials were different from those of the previous school nurse. The employment of this nurse has created a separate nurse’s salary schedule keyed off of the teacher’s salary schedule in increments for longevity and index of .04 for the past nine years. The school nurse receives 90 percent of the salary the teachers receive. In fact, the nurse’s contract is directly created from a teacher’s contract.

The counselors’ contracts are also directly created from a teacher’s contract. The counselors are also paid according to a teacher’s salary schedule. Furthermore, several other established policies and procedures are applicable to teachers, counselors and the nurse. Examples of those policies and procedures are professional growth, general teacher evaluation, child abuse reporting, reduction in force, and staff absences.

The Respondent also argues that the Association has sought to remove teachers from the bargaining unit to the extent that their duties ceased to be teaching duties and became "administrative" or "supervisory." The Respondent presents evidence that the KEA bargains for twenty-two percent of Kenneth Smith’s salary. Kenneth Smith’s main job title is Activities Director. However, he teaches two class periods and the KEA bargains for the teaching portion of his total salary. The Respondent also argues that Kelly Tofflemire was also removed from the bargaining unit two years ago because his job duties changed from teaching to a Technology Coordinator. However, during the 2002-2003 contract year, the Respondent states that the KEA negotiated for one period of his salary in which he maintained his normal teaching duties. The Respondent alleges that these two examples establish a policy by the Association to remove any bargaining unit members that have administrative or supervisory duties. We find that this argument lacks merit because the Association, by filing this case, is actively seeking the inclusion of the nurse and the school counselors. Furthermore, as established above, neither the nurse nor the counselors perform any supervisory duties under § 48-801(9), unlike the supervisory duties performed by the Technology Coordinator or the Activities Director.

Therefore, regarding the issue of established policies of the employer, we find in the Petitioner’s favor.

The Respondent contends that the extent of the Association’s past organization is irrelevant because the Association has continuously refused to negotiate on behalf of the school district’s employees when the employee’s duties involved what the Association considered administrative, not teaching duties. The Petitioner maintains that the past extent of union organization is indeed relevant and significant.

It is undisputed that 58 employees belong to the established bargaining unit. The bargaining unit has been in existence for over twenty years and the nurse has been included in the bargaining unit since 1987. There have been no problems for either the District in negotiating with, or the Association in negotiating on behalf of, the school nurse and the school counselors during the past sixteen years.

Therefore, regarding the issue of extent of union organization, we find in the Petitioner’s favor.

The Respondent argues that while it is clear that the nurse wants to be in the bargaining unit, there was no showing that the counselors wanted to be in the bargaining unit. The Petitioner argues that it is clear that the bargaining unit members desire for the nurse and the counselors to remain within the bargaining unit.

At trial, the nurse and several teachers testified to their desire to include the nurse and the counselors in the bargaining unit. The May 12, 2003, Clerk’s Report also indicates that the showing of interest for including the nurse and the counselors in the bargaining unit was ninety-eight percent (98%). 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 decide this factor in the Petitioner’s favor.

The Respondent maintains there is absolutely no interchange of duties between the nurse and the teachers and there is minimal interchange between the counselors and the teachers. The Petitioner concedes that there is little employee interchange between the nurse and the teachers because the nurse has some different skills.

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.

On a daily basis, the nurse participates with the teachers on Individual Education Plans (IEP) team and on the Student Assistant Team (SAT). The nurse also participates in parent-teacher conferences. The school nurse also teaches a fifth-grade growth and development short course and a nutritional class in second grade. The nurse also, on occasion, goes into the classroom to observe children and evaluate their behavior for such conditions as attention deficit disorder. The nurse also serves on the school’s crisis team and safety committee. Both the school nurse and the teachers make home visits to families who may need assistance for special health needs as well as providing health information. While it is clear that the nurse interacts closely on a daily basis in many different settings with teachers, evaluation of conditions and assistance for special health needs are the only interchange between the nurse and the teachers.

On the other hand, the guidance counselors work hand-in-hand with teachers in the assessment and diagnosis of the individual education needs of the students, especially students that have special needs. While the guidance counselors are responsible for achievement testing for students, both the teachers and the guidance counselors interpret the scores of the achievement tests. The guidance counselors are part of the IEP and SAT teams, and any other team that would work in a manner to assist students with special needs. Counselors and teachers are both responsible for building-wide supervision of students. Counselors interchange with teachers during building-wide supervision of students and during the interpretation of achievement tests scores. While the counselors interchange with teachers on a regular basis, nurses do not interchange with teachers on a routine basis.

Therefore, we cannot decide this factor in either parties’ favor.

The Petitioner contends that it does not believe the Respondent has presented enough evidence that undue fragmentation will negatively impact the District’s desire to have several bargaining units. The Respondent asserts that because the Association desired to remove other bargaining unit members because they performed non-teaching duties, the Association has already indicated a desire for fragmentation.

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 unit requested by the Association is 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 the case before us, the evidence shows the single bargaining unit does not interfere with the continuous operational efficiency of instructional services in the District, and creation of multiple bargaining units 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 extent of union organization, desires 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 nurse, the counselors and the teachers of the Respondent. In the instant case, all three of these job positions counsel with colleagues, students, and parents on a regular basis. On a daily basis, all three positions work together to form a cohesive unit, educating Nebraska students.

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."

The District’s nurse, counselors and teachers as a group are essential to educating the Kimball student population. While the nurse does have some differences in skills for employment, we must constantly recognize that fragmented units interfere with the proper functioning of the District. We conclude that the bargaining unit requested by the Petitioner herein is appropriate. The Commission hereby finds that the positions of nurse and counselors should be appropriately in the unit with the teaching positions. The appropriate bargaining unit consists of: "All non-administrative certificated employees employed as teachers, counselors and nurses."

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 October 14, 2003.