15 CIR 255 (2006)
|NEBRASKA FRATERNAL ORDER||)||CASE NO. 1113|
|OF POLICE, LODGE 18,||)||REPRESENTATION DOC. NO. 402|
|Petitioner,||)||FINDINGS AND ORDER|
|UNIVERSITY OF NEBRASKA,||)|
Filed September 18, 2006
|For Petitioner:||Patrick B. Cavanaugh|
|Cavanaugh Law Firm, P.C., L.L.O.|
|1905 Harney Street, Suite 710|
|Omaha, NE 68102|
|Dowd, Howard & Corrigan, L.L.C.|
|1411 Harney Street, Suite 100|
|Omaha, NE 68102|
|For Respondent:||John C. Hewitt|
|Cline, Williams, Wright, Johnson & OIdfather, L.L.P.|
|One Pacific Place|
|1125 South 103 Street|
|Omaha, NE 68124|
Before: Judges Blake, Burger, and Cullan
NATURE OF THE PROCEEDINGS:
The Nebraska Fraternal Order of Police, Lodge 18 (hereinafter, “Petitioner” or “Union”) filed a Petition on February 1, 2006, seeking to certify a bargaining unit of all police officers and sergeants below the rank of captain who are required to be certified law enforcement officers at the University of Nebraska. The University of Nebraska (hereinafter, “Respondent” or “University”) filed an Answer on March 13, 2006, asserting the unit sought to be represented by the Petitioner is not an appropriate unit.
The issues presented at trial are stated as follows:
1. Whether the unit requested by the Petitioner is a broad occupational unit established on a university-wide basis, including all campuses within the system, under Neb. Rev. Stat. § 81-1373 (3).
2. Whether the unit requested by the Petitioner would result in undue fragmentation under the Nebraska State Employee Collective Bargaining Act and the Nebraska Industrial Relations Act.
3. Whether police sergeants employed at the University of Nebraska − Lincoln campus and the University of Nebraska – Kearney campus are statutory supervisors within the meaning of the Nebraska State Employees Collective Bargaining Act and the Nebraska Industrial Relations Act, and therefore, must be excluded from any bargaining unit.
4. Whether the guard/non-guard rule applies to the unit determinations under the Nebraska State Employees Collective Bargaining Act, and if so, whether the rule prevents the inclusion of “guards” in a unit including “non-guard” office and service employees of the University of Nebraska system.
Currently, the University of Nebraska bargains with only two unions, both comprised of faculty members. One of the bargaining units is located in Omaha and is represented by the American Association of University Professors. The other bargaining unit is located in Kearney and is represented by the University of Nebraska-Kearney Education Association. The Law College at the University of Nebraska at Lincoln is also certified to bargain, but has never bargained with the University. The University has never been required to bargain with any office or service personnel, nor has the University ever been required to bargain with any law enforcement groups in the past.
The University of Nebraska is comprised of the Board of Regents, the administration, the faculty, and the student body. The Board of Regents appoints the President who acts as the chief executive officer, governing the University of Nebraska in its entirety. The central administration is responsible for the development of personnel policies including fringe benefits, working conditions, employment practices, grievances and compensation policies, subject to market forces present at the campus level. While central administration governs the entire university, the university is comprised of four distinct and self-regulating administrative units. Each major administrative unit is governed by an individual chancellor, who is the chief executive officer of their respective administrative unit. The chancellors are semi-autonomous. Each chancellor’s duties are subject to the guidelines and policies of the Board of Regents and the President, but chancellors are charged with developing, evaluating, budgeting, and maintaining their administrative unit. These administrative units are located at four campuses: the University of Nebraska at Kearney, the University of Nebraska at Omaha, the University of Nebraska at Lincoln and the University of Nebraska Medical Center.
The University of Nebraska at Kearney (hereinafter, “UNK”) is primarily an undergraduate institution with a select mix of master’s level graduate programs. The University of Nebraska at Omaha (hereinafter, “UNO”) is primarily a metropolitan institution, emphasizing undergraduate teaching with a diverse mix of master’s degree programs combined with a small number of doctoral programs. UNO has primary responsibility for urban-grant activities. The University of Nebraska at Lincoln (hereinafter, “UNL”) is the primary research and doctoral degree-granting institution in the state for fields outside the health professions and offers a broad range of undergraduate and graduate programs. UNL has the primary responsibility for the land-grant activities. The University of Nebraska Medical Center (hereinafter, “UNMC”) is charged with providing educational programs for health professions. UNMC also is responsible for medical research in the State of Nebraska.
The University provides comparable public safety services at each of its campuses. For example, the University of Nebraska system mandates that all officers in law enforcement retire at age 70. The University of Nebraska also carries a system-wide insurance policy for the criminal defense of certified law enforcement officers. However, even though the University provides system-wide policies, the levels of security at each of the campuses vary, since each campus is charged with offering different types of pedagogical and research opportunities and the campuses are, for the most part, located in vastly different locations.
For example, the decision to require campus security to be certified law enforcement is made at the campus level. UNK and UNL require the law enforcement to be certified; whereas, UNMC and UNO have no such requirement. The bargaining unit requested by the Petitioner seeks only to represent those certified law enforcement personnel at UNK and UNL. The bargaining unit requested consists of the following positions: Police Officers and Police Sergeants at UNL and Public Safety Officers and the Public Safety Corporal at UNK. (The Petitioner is not requesting that the sergeant at UNK be included in the bargaining unit. Both parties stipulated at trial that the sergeant at UNK was equated to a captain level position at UNL and therefore, not appropriate for inclusion in a bargaining unit.)
The University’s pay structure classifies the employees into larger groups. The University formerly grouped its employees into two enormous categories: the office and service classification and the managerial and professional classification. However, beginning in September of 2001, the NU Values pay structure started to replace the old pay structure system at the University. The NU Value pay structure divides the old University of Nebraska pay structure into 15 smaller job family categories. These categories include: Administrative and Business Operations, Advising, Career and Student Services, Educational and Outreach Programs, Facilities Planning and Operations, Food Services and Dietary, Healthcare, Information Technology, Library Services, Materials Management/Print Production, Museum and Arts, Public Relations/Marketing/Development, Public Safety, Research and Agriculture, Sports and Recreation, and Television/Radio/Video Productions. The public safety job category currently includes approximately 137 individuals at the various campuses. Each campus uses different job titles in the NU Value System. At UNL, these titles include: Assistant Chief of Police, Assistant Manager of Campus Security, Campus Security Corporal, Campus Security Officer, Campus Security Sergeant, Dispatch Supervisor, Dispatcher, Manager of Campus Security, Parking Attendant, Police Officer, Police Sergeant and Security Guard. At UNK these job titles include: Community Service Officer, Parking Service Coordinator, Public Safety Sergeant, Public Safety Corporal, and Public Safety Officer. At UNMC these job titles include Campus Security Officer, Campus Security Corporals, Campus Security Sergeants, Campus Security Supervisor, Dispatcher, Dispatch Supervisor, and Campus Security Assistant Supervisor. At UNO these job titles include: Public Safety Officer, Public Safety Specialists, Public Safety Associates, Dispatchers, Supervisor of Security, and Assistant Manager of Security.
Previously, in Case 1091, the Petitioner sought to represent all police officers, sergeants and dispatchers below the rank of captain employed only at the University of Nebraska at Lincoln. The Petitioner currently seeks a system-wide bargaining unit with only Police Officers and Police Sergeants at UNL and the Public Safety Officers and Public Safety Corporal at UNK, since only those four positions are currently required to have certified law enforcement training. No officers at UNO or UNMC are required to be certified by their respective campuses.
The public safety department at UNL provides security for the Lincoln campus. The UNL officers patrol the campus to prevent crime and traffic offenses by enforcing laws and regulations. The UNL officers also respond to calls for assistance, conduct criminal and accident investigations, arrest, respond to medical calls, provide security, and file investigation reports. The UNL officers must complete yearly re-certification in firearms, pressure point control tactics, AED, and CPR. The UNL officers use the UNL dispatch center. The UNL dispatchers man the dispatch center and maintain the daily radio operations for the officers. The officers at UNL also have daily interaction with the community service officers. The UNL community service officers provide an additional level of security on campus, mainly at the stadium, academic buildings, and the residence halls. The UNL community service officers do not have the ability to detain or arrest outside of a felony or shoplifting. Both the officer position and community service officer position at UNL provide security to the University by opening and closing buildings for special events and irregular classes, performing routine security checks of designated property requiring specialized security attention, and providing security at University- sanctioned events.
The public safety department at UNK also provides a somewhat similar level of security to the students, faculty, and public at the Kearney campus. The command structure at UNK starts with the director, then the sergeant, followed by the corporal who assists the sergeant, and then the officers and community service officers. The UNK community service officers are students who work as safety escorts, open and close buildings, allow authorized personnel into buildings after hours and handle parking tickets. Community service officers at UNK generally do not work more than five hours per shift and work less than 19 hours every two weeks during the school year. Whereas, a UNK officer works a ten-hour shift during the school year and during the summer months works twelve-and eight-hour shifts. Officers at UNK must be certified through a law enforcement training academy. The UNK officers also have to be certified in mace, as well as certified in first aid CPR, and emergency management training through FEMA. The UNK officer must attend yearly re-certification sessions to maintain their current certifications, which also include firearms and pressure point control tactics. UNK officers spend the day filing reports, performing community service work, meeting with faculty, students, and staff, locking and unlocking buildings. An officer performs all the duties encompassed in the community service position, but in addition to those duties, the officers at UNK enforce laws, run traffic, and have the power of arrest. At UNK, both the officers and the community service officer unlock buildings, respond to fire alarms, enforce parking laws, provide safety escort services, and assist other law enforcement agencies.
The public safety department at UNMC also provides security to the students, faculty, public, and patients at the campus in Omaha. The UNMC public safety department employs dispatchers who provide direct communication with the UNMC campus security officers. The UNMC dispatchers must field incoming calls by prioritizing and dispatching the proper level of assistance. The UNMC campus security officer patrols campus buildings and grounds, unlocks doors, tests and activates all security alarmed areas, performs fire and safety inspections in all buildings, directs traffic and enforces all traffic and parking rules and regulations, escorts employees, prepares security reports and responds to emergency situations. The UNMC campus security officers patrol on foot, in motor vehicles, and on bikes, working eight-hour shifts. The UNMC campus security officers must recertify yearly in pressure point control tactics, CPR, and AED. The UNMC campus security officers also perform security for the private Nebraska Medical Center. In performing this security function, the UNMC campus security officers also spend a great deal of time in the emergency room, protecting and maintaining order when large groups of relatives or gang members come into the emergency waiting area.
The public safety department at UNO also provides security to the students, faculty and public at the campus in Omaha. The campus security officers at UNO perform general safety and security work on the grounds, in the buildings, and provide traffic control on the campus, patrolling on foot and in motor vehicles. The UNO campus security officers also respond to medical emergencies, complete incident reports, provide safety checks, enforce traffic and parking rules and regulations, and help with special events. UNO campus security officers must satisfactorily complete CPR, First Aid, AED, and PPCT training and re-certify their training every year. The campus security officers at UNO work eight-hour shifts. UNO’s public safety department also employs campus security specialists and security associate technicians. Campus security specialists at UNO maintain the key control system, a card access system and intrusion alarm system. The UNO campus security specialist is also a uniformed officer and works special events and maintains all of the requisite training, the same as a UNO campus security officer. The security associate technicians at UNO maintain the University’s closed circuit television system. The UNO security associate technicians will also work in uniform at special events as do the UNO campus security officers.
The Petitioner argues that a bargaining unit of all police officers and sergeants below the rank of captain who are required to be certified law enforcement officers at the University of Nebraska is an appropriate unit under Neb. Rev. Stat. § 48-838. The Respondent argues that the unit requested by the Petitioner is not a broad occupational unit established on a university-wide basis, under Neb. Rev. Stat. § 81-1373 (3). The Respondent also argues that the unit requested by the Petitioner would result in undue fragmentation under the Nebraska State Employee Collective Bargaining Act and the Nebraska Industrial Relations Act. The Respondent instead desires a determination that the appropriate unit would be all office and service classifications in the University of Nebraska system. Since this is not requested by the Petitioner, the Respondent requests that the Petition be dismissed.
According to Neb. Rev. Stat. § 81-1374 (5) procedures for the determination of a certified exclusive collective bargaining agent for any bargaining unit prescribed in Neb. Rev. Stat. § 81-1373 shall comply with Neb. Rev. Stat. § 48-838 and any rules and regulations adopted and promulgated pursuant thereto by the Commission. Neb. Rev. Stat. § 48-838 authorizes the Commission to determine the appropriate unit for bargaining. Neb. Rev. Stat. § 48-838 (1) and (2) state:
(1) The commission shall determine questions of representation for purposes of collective bargaining for and on behalf of employees and shall make rules and regulations for the conduct of elections to determine the exclusive collective-bargaining agent for employees, except that in no event shall a contract between an employer and an exclusive collective bargaining agent act as a bar for more than three years to any other party seeking to represent employees, nor shall any contract bar for more than three years a petition by employees seeking an election to revoke the authority of an agent to represent them. Except as provided in the State Employees Collective Bargaining Act, the commission shall certify the exclusive collective-bargaining agent for employees affected by the Industrial Relations Act following an election by secret ballot, which election shall be conducted according to rules and regulations established by the commission.
(2) The election shall be conducted by one member of the commission who shall be designated to act in such capacity by the presiding judge of the commission, or the commission may appoint the clerk of the district court of the county in which the principal office of the employer is located to conduct the election in accordance with the rules and regulations established by the commission. Except as provided in the State Employees Collective Bargaining Act, the commission shall also determine the appropriate unit for bargaining and for voting in the election, and in making such determination, the commission shall consider established bargaining units and established policies of the employer. 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.
Neb. Rev. Stat. § 81-1373(3) also provides:
It is the intent of the Legislature that professional and managerial employee classifications and office and service employee classifications be grouped in broad occupational units for the University of Nebraska and the Nebraska state colleges established on a university-wide or college-system-wide basis, including all campuses within the system. Any unit entirely composed of supervisory employees of the University of Nebraska or the Nebraska state colleges shall be afforded only meet-and-confer rights. Except as provided in subsection (4) of this section, the bargaining units for academic, faculty, and teaching employees of the University of Nebraska and the Nebraska state colleges shall continue as they exist on April 9, 1987, and any adjustments thereto or new units therefore shall continue to be determined pursuant to the Industrial Relations Act.
It is well settled Nebraska law that the moving party has the burden of proof. Nebraska State Patrol v. State Troopers Ass’n of Neb., 9 CIR 37 (1987). The Petitioner, seeking certification of a collective bargaining unit, is the moving party in this case. The Petitioner therefore must present enough evidence for the Commission to find an appropriate system-wide non-fragmented unit. The Commission is bound to the evidence and pleadings presented. Therefore, the Commission’s decision must be restricted to whether the bargaining unit as requested by the Petitioner is appropriate.
The Petitioner argues that only the certified law enforcement employees should be in a bargaining unit because those employees are performing “guard” work. The Petitioner also argues that under the prior decisions of the Commission, the commissioned law enforcement officers cannot be contained within a bargaining unit of all office and service employees, and that those commissioned officers are performing materially different work from other security officers employed in the University of Nebraska system. The Respondent argues that the legislative intent established that the Commission need not consider the guard/non-guard rule when establishing bargaining units at the University of Nebraska.
The Commission’s rule prohibiting guard and non-guard employees from being in the same bargaining unit or being represented by the same union is well established. See, Fraternal Order of Police, Lodge 41 v. County of Scotts Bluff, 13 CIR 236 (1999); Nebraska Ass’n of Public Employees v. County of Richardson, 12 CIR 100 (1994); Communication Workers of America v. Hall County, 12 CIR 53 (1994); Supervisory, Managerial, and Prof’l Employees Bargaining Ass’n. v. City of Bellevue, 11 CIR 48 (1991); Communication Workers of America v. County of Scotts Bluff, 11 CIR 60 (1990); Retail and Prof’l Employees Union, Local 1015 v. Metropolitan Technical Community College Area, 3 CIR 512 (1978); and University Police Officers Ass’n, Local 567 v. University of Neb., 3 CIR 335 (1977). See also, Lincoln City Employees Union v. City of Lincoln, 210 Neb. 751, 317 N.W.2d 63 (1982). A guard under the guard/non-guard rule is defined as “any person employed . . . to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer’s premise.” FOP Lodge 41 v. County of Scotts Bluff, 13 CIR 236 (1999) (quoting 29 U.S.C. § 159(b)(3)). Furthermore, to determine whether an employee is a guard the Commission has also held:
…the [Commission’s] inquiry must focus on whether the potential conflict of loyalties . . . is present. To be a guard, therefore, the employee must be obligated to enforce plant protection rules against employees and other persons. . . Only when this element of potential personal confrontation is present in the employee’s duty to protect the employer’s property is that employee a ‘guard.’ . . .
Hall County, 12 CIR at 58 (quoting Wells-Fargo Alarm Services v. NLRB, 533 F.2d 121, 125 (1976)).
Using decisions of the National Labor Relations Board as guidance, the Commission has stated that the reason for the guard/non-guard prohibition is:
to insure to an employer that during strikes or labor unrest among his other employees, he would have a core of plant protection employees who could enforce the employer’s rules for protection of his property and persons thereon without being confronted with a division of loyalty between the Employer and dissatisfied fellow union members.
Hall County, 12 CIR at 56 (quoting McDonnell Aircraft Corp., 109 NLRB No. 147, 34 LRRM 1489 (1954)).
In Fraternal Order of Police, Lodge 45A v. City of Beatrice and Neb. Ass’n of Public Employees, AFSCME Local 61, 13 CIR 295 (1999), the Commission was confronted with a proposed bargaining unit where police officers desired to be in a bargaining unit with other police department employees, namely dispatchers and a community service officer. In arriving at its determination, the Commission noted that the dispatcher and community service officer positions shared a strong community of interest with the police officers and the three positions constantly interacted daily in the performance of their duties. Id. at 299. The Commission found that all of the proposed bargaining unit members played a vital role in law enforcement. Id. at 301. The Commission considered that, in addition to monitoring calls, dispatching officers, and tracking officers’ whereabouts, the dispatchers also monitored access to the police station during the night and monitored jail cameras and alarm systems. Id. at 303. The Commission found that these duties could qualify the dispatchers as guards for the purposes of the guard/non-guard distinction. Id. In determining this, the Commission cited to Rhode Island Hosp., 313 NLRB 343 (1993) (holding that hospital security dispatchers were statutory guards). In Rhode Island Hosp., the NLRB found that the security dispatchers’ duties included monitoring a closed circuit TV system in the security station and calling security officers whenever they observed incidents or problems that needed a response. The NLRB observed that employees performing similar functions have been found to be guards under the Act. See also MGM Grand Hotel, 274 NLRB 139 (1985). The NLRB reasoned that the fact that dispatchers did not personally confront employees or others, but rather merely reported violations, did not defeat their guard status. The NLRB concluded that because the dispatchers’ authority to observe and report infractions was not merely incidental to their other duties, but instead constituted one of their primary responsibilities which was an essential link in the hospital’s effort to safeguard its employees and enforce its rules, the dispatchers were indeed guards under the National Labor Relations Act. Rhode Island Hosp., 313 NLRB at 347. Likewise, in Fraternal Order of Police, Lodge 45A, the Commission found the dispatchers and lead dispatcher to be “essential links” in the city’s effort to safeguard its employees and the public and enforce its rules, laws, and ordinances. 13 CIR at 304.
In Fraternal Order of Police, Lodge 45A, the Commission also found that the community service officer was an essential part of the law enforcement team. Id. The Commission determined the evidence illustrated that the community service officer was an essential member of the law enforcement team and served to enforce laws, ordinances, and rules for the protection of citizens, fellow employees, and property. Id. In sum, the Commission found that while neither the dispatchers nor the community service officers were sworn law enforcement officers, both positions did not carry weapons or have the power to arrest, and both positions were not specially trained in law enforcement techniques; given the strong evidence that the dispatchers and community service officers were all integral members of the law enforcement team, they should lawfully be included in a bargaining unit with police officers and sergeants. Id. See also, Schlesinger Geriatric Center, 267 NLRB 1363 (1983). The Commission concluded that to hold otherwise would be to ignore the prior twenty-five (25) years of bargaining history and cause undue fragmentation of bargaining units by requiring police department dispatchers, community service officers, and police officers to collectively bargain in two or more separate bargaining units. 13 CIR at 305.
In the instant case, the evidence establishes that there are four separate campuses acting semi-autonomously. However, UNL, UNK, UNMC and UNO all operate under the NU-Value system, all governed by the Board of Regents. While the functions and locations of the campuses are very different, the Commission is not given the discretion to treat UNL, UNK, UNMC, and UNO as separate campuses and separate entities, due to SECBA, which specifically requires the Commission to deal with the university on a system-wide basis.
In the prior proceeding (Case 1091), which was dismissed before trial, the Petitioner attempted to establish a unit including only Lincoln campus sergeants, officers, and dispatchers. The Petitioner now seeks to organize only “certified law enforcement officers”, which consists primarily of certified officers in Lincoln in addition to a small number of certified officers in Kearney. The evidence establishes that there are no certified officers at the University of Nebraska-Omaha campus or at the University of Nebraska Medical Center campus.
The Petitioner now claims the Commission must establish a separate bargaining unit for the certified officers because those officers have a different community of interest based upon their training and job duties. The Respondent denies this, claiming that the sergeants in Lincoln are supervisory, and that SECBA requires all office and service employees in the entire university system to be included in one bargaining unit. The Respondent argues that at the very least, an appropriate unit must include all public safety officers.
There are approximately 137 individuals within the public safety job family across the four campuses. These include the commissioned officers, dispatchers, and community service officers. While there are some similarities in training, only the commissioned officers are required to have firearms training. Only the officers on the Lincoln campus are allowed to carry firearms. Only certified officers have arrest authority, but certified and non-certified officers across the system have security, public safety and law enforcement duties. The evidence shows that, across the system, the public safety or law enforcement personnel have more in common with security functions than with educational or university administration functions. Even at the Lincoln campus, the evidence illustrates that the assigned job responsibilities are such that security and safety duties are more important than arrest and enforcement duties.
The Petitioner argues that due to the special training required of the commissioned officers and the divergence in job duties, a separate bargaining unit of just certified officers would not create undue fragmentation. The Respondent argues that the unit proposed by the Petitioner creates a fragmented bargaining unit against the confines of the State Employees Collective Bargaining Act and the Industrial Relations Act.
Under the Industrial Relations Act, any unit less than departmental in size is generally not favored. See International Brotherhood of Electrical Workers, Local Union No. 2025 v. Nebraska Public Power Dist., 14 CIR 150 (2003). The public policy provisions in Neb. Rev. Stat. § 48-802 require the Commission to insure the continuous operation of government services. Fragmented units interfere with that public policy, 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). 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. See Kimball Educ. Ass’n v. Kimball County School Dist., 14 CIR 24 (2003).
For example, in Sheldon Station v. Nebraska Public Power Dist., 202 Neb. 391, 275 N.W.2d 816 (1979), 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. The case law established by the Commission and the Nebraska Supreme Court and the application of Neb. Rev. Stat. § 48-838, provides a strong backdrop to base our decision on the long-standing public policy against fragmented units.
In this case, the semi-autonomous nature of the four campuses could result in a determination that bargaining units should be established separately for each campus. However, the Commission will not decide this, as SECBA prevents it, with the Legislature’s clear statement of intent that the units are to be based upon broad occupational classifications on a system-wide basis. The purpose is to avoid fragmentation. Undue fragmentation is always a goal in the establishment of bargaining units. The question obviously becomes what is “undue”. In this case, SECBA provides legislative intent, which the Commission must follow. The community of interest and all of the factors to be considered in determining the appropriate bargaining unit must be viewed in light of the Legislature’s mandate.
The Commission does not adopt Respondent’s argument that the broad class means that there must be only one bargaining unit made up of all office and service employees across the university system. The language provides for grouping and broad occupational “units”, obviously providing for creation of more than one unit. Otherwise, there would be little need for the Commission’s jurisdiction to determine the appropriate unit. Rather, SECBA gives direction to the Commission to determine the appropriate unit under the direction that bargaining units are to be system-wide and to be based upon broad occupational classifications.
The Respondent argues that broad horizontal groupings will favor the employees. The Respondent presented evidence by Peter Pashler, author of a report which was very influential in the creation of SECBA. While Mr. Pashler’s testimony was helpful, particularly with respect to the development of SECBA, the Commission is not guided by his interpretation. Rather, we are guided by the legislative history itself and the law as adopted. The Commission need not adopt or deal with Mr. Pashler’s concept of broad horizontal occupational units or the merits of such units. The policy to have broad occupational units was adopted by the Legislature for the purpose of avoiding undue fragmentation. This is very well punctuated by SECBA and by the previous decisions of this Commission and our courts. Undue fragmentation fosters proliferation of the number of representatives necessary for bargaining and contract administration, for both sides, and it destroys the ability of public institutions to develop, administer, and maintain any semblance of uniformity or coordination. Treating the University of Nebraska on any basis other than system-wide, would be an excellent illustration of the problems created by fragmentation.
The Sheldon Station case is urged by Respondent to be particularly instructive. 202 Neb. 397, 275 N.W.2d 816, (1979). It is not particularly helpful. Factually, it involved people doing virtually the same job at five different stations, with one administration, one centralized personnel system, and personnel who are largely interchangeable among the five locations. These factors are not all clearly present in this case. However, SECBA requires us to view the system as if these factors were all present as they were in the Sheldon Station case.
Here, the jobs at the various campuses are to some extent different. The certified officers are law enforcement officers. The others are more similar to parking enforcement and security officers. However, there are still enough similarities that separating out the certified officers would, in our opinion, create undue fragmentation under the direction of SECBA.
This case is not controlled by University Police Officers 567 v. University of Nebraska, 277 N.W.2d 529 (1979). In that case it was stipulated that there was not a community of interest. In this case, 27 years later, there is no such stipulation, and SECBA would likely prohibit it.
This case is also directly analogous to Police Lodge 45A v. City of Beatrice, 13 CIR 295 (1999). The Respondent does argue, correctly, that City of Beatrice speaks against a pure guard (certified officer)/non-guard (non-certified employee) rule. In City of Beatrice, the dispatchers and community service officers were all placed in the same unit. However, the Respondent goes further, arguing that it should be presumed that the Commission found the occupations to be in a functionally integrated work effort. In making this argument, the Respondent cites Sheldon Station. The Respondent’s assessment in its comparison of City of Beatrice to Sheldon Station and the instant case is inaccurate. City of Beatrice involved only one work site, in one community, with the unified goal of providing for public safety in Beatrice. The facts present in City of Beatrice demonstrated constant interaction between all the bargaining unit members and those members were all under the supervision of the same department head.
On the other hand, the Sheldon Station case detailed the various Nebraska Public Power District work locations, which involved one central administration of numerous work locations and significant interaction and transfers from site to site. Sheldon Station presented the Commission with job duties of one “job classification,” which were essentially the same from site to site.
The instant case is dissimilar from the Sheldon Station case, in that each site is separate, with different duties and little, if any, interaction between sites. Here, the evidence indicates that each campus site is managed differently and there was no evidence presented as to whether transfers between the campus public safety departments even occur.
The Petition in this case is slightly different from the prior petition which was dismissed. The simple difference would be to add to the group of Lincoln certified officers, a small group of certified officers at Kearney. The Commission does not find the evidence in this case separates the duties, interaction, general nature of the operation, and community of interest so as to justify creation of a bargaining unit as requested by Petitioner. The unit is too narrow under SECBA.
The Commission need not decide the exact limits of the appropriate bargaining unit, and the Commission should not do so in this case. The showing of interest provided to the Commission supports only a creation of a unit containing certified officers. There is no showing of support for any other classifications. There was no request to create any different unit, and the evidence does not delve into detail on what other job classifications might be included. The Commission only finds that the requested unit is not appropriate. In doing this, the Commission will not go through the other job classifications at this time. The Commission notes that while the requested bargaining unit did include that sergeants within the proposed unit (excluding the sergeant position at Kearney), the Commission need not decide this issue, as no bargaining unit has been certified.
It is fairly clear that the Petitioner, with the case stripped bare of all of the non-essential elements, is still attempting to create a Lincoln campus bargaining unit which the Commission finds to be contrary to the mandates of SECBA. Having presented neither the persuasive arguments nor the evidence, the Petitioner has not carried its burden of proof in this case.
IT IS THERFORE ORDERED that the Petition is hereby dismissed.