15 CIR 315 (2007) 

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 APPEARANCES:

Entered March 19, 2007.

Before:  Judges Lindahl, Blake, and Burger

LINDAHL, J. 

NATURE OF THE PROCEEDINGS: 

            Employee United Labor Association (hereinafter, “Petitioner”), filed a Petition seeking to represent a proposed bargaining unit of employees of the Omaha Airport Authority who are full-time employees and regular, part-time employees, who are not supervisors, seasonal, or temporary employees, employed in the following departments: Field Maintenance Department, Building Engineer’s Department, Custodial Department and Communications Center, in four separate bargaining units. The Omaha Airport Authority filed an Answer alleging that the employees should not be in separate bargaining units because the units have not been separated for bargaining in the past, and that part-time employees should not be part of any unit found to be appropriate. The International Union of Operating Engineers, Local 571, the other named Respondent in the Petition, filed a disclaimer of interest, stating that they no longer desired to be recognized as the exclusive bargaining representative for employees of the Omaha Airport Authority. The parties agreed prior to trial that the four separate bargaining units should be combined into one bargaining unit consisting of all regular full-time employees in the Field Maintenance Department, Building Engineer’s Department, Custodial Department, and Communications Center.

Therefore, the only issue left to be determined at trial was whether the regular part-time employees (specifically the part-time custodians, the part-time Communications Center employees, the part-time secretary in the Field Maintenance Department, and the tow-truck drivers) should be included as members of the bargaining unit.

On November 22, 2006, a Petition to Intervene was filed by the United Food and Commercial Workers Local 271. On January 19, 2007 the Commission ordered that the Intervener should be placed upon the election ballot subsequent to the Commission’s Findings and Order regarding the composition of the bargaining unit.

FACTS:

            The Omaha Airport Authority serves as the base of operations for commercial and general aviation and cargo areas for air transportation in the City of Omaha. The Omaha Airport Authority is governed by a five-member board of directors and managed by an executive director. In order to run its operations, the Omaha Airport Authority is split into multiple departments. These departments include Field Maintenance, IT Technology, Building Engineer, Communications Center, Fire/Rescue, Airport Police, Custodial, and Finance and Administration.

            The Petitioner is seeking to represent all full-time employees and regular, part-time employees who are not supervisors, seasonal or temporary employees, employed in the following four departments: Field Maintenance Department, Building Engineer’s Department, Custodial Department and Communications Center.

            The Respondent is only questioning the inclusion of the part-time employees in the bargaining unit. The part-time employees in question include, three part-time custodians, two part-time Communications Center employees, seven part-time tow-truck drivers and one part-time administrative assistant in the Field Maintenance department. The part-time employees were not included as part of the recognized bargaining unit in the immediately preceding contract between the Omaha Airport Authority and the International Union of Operating Engineers, Local No. 571.

            The evidence at trial indicates as follows:

            a.  The three part-time custodians perform identical work to the full-time custodians. Both the full-time and part-time custodians are responsible for the cleanliness and sanitation of the airport main terminal and its adjacent concourses. The full-time and part-time custodians clean the terminal and concourses by scrubbing floors, vacuuming, sweeping, and dusting. A part-time custodial employee who testified at trial was a full-time custodian and then went to part-time for medical reasons. One of the other current part-time custodial employees is also in line for a full-time custodial position when one becomes available through a vacancy. Both the full-time custodians and part-time custodians are supervised by the custodial manager, Girard Hunter.

            b.  The two part-time Communications Center operators perform identical work to the full-time Communications Center operators. Both full-time and part-time Communications Center operators use a radio dispatch and watch the security cameras located throughout the airport. The two part-time operators handle the same functions and responsibilities of the full-time Communications Center operators. The two part-time Communications Center operators have the same skills as those of the full-time Communications Center operators, utilizing the same equipment and even sitting in the same chairs as the full-time Communications Center operators. The only difference noted between the full-time and part-time Communications Center employees, is that the part-time employees do not receive benefits. The full-time Communications Center operators and part-time Communications Center operators are all supervised by the operations manager, Tim Schmitt.

            c.  The administrative assistant in the Field Maintenance Department serves at the desk reception area to allow entrance and exit to the secure area of the airport in the Field Maintenance Department. The administrative assistant receives delivery shipments, signs off on their entry to the facility, and then contacts the intended receivers. The administrative assistant maintains the computer purchase ordering system that tracks well over a thousand purchases per year through a computer system. The administrative assistant prepares, processes, and files purchase orders submitted by other staff members. The administrative assistant does not work with other administrative clerical employees but instead, works with employees in the Field Maintenance Department. The administrative assistant also takes the submitted schedules from tow- truck drivers and prepares a monthly schedule for the tow-truck operators, two weeks in advance, with approval from the Field Maintenance Manager. The Field Maintenance Manager testified that the administrative assistant position was essential to the operation of the Field Maintenance Department.

            d.  After September 11, 2001, new regulations were issued for all airports in the United States regarding traffic control. At some point after September 11, 2001, the Omaha Airport Authority engaged a group of part-time tow-truck drivers to monitor the front drive of the airport, so that if a car is left unattended at the curb, the car is subject to being towed away to a different lot. The part-time tow-truck drivers are scheduled from 6 o’clock in the morning until 10 o’clock at night, seven days a week. Five of the seven operators have CDL licenses and have been trained to operate the street plow on the front drive if a severe snowstorm were to occur. No other members of the bargaining unit perform tow-truck work and the tow- truck drivers have no documented interchange with other employees. The tow-truck drivers execute their daily job duties nearly autonomously. For the most part, the tow-truck drivers set their own hours, within the flexible confines of covering the required shifts. The tow-truck drivers use radio channels set aside for police officers, rather than the frequency used by other Field Maintenance employees.

DISCUSSION:

            In determining the appropriateness of an existing bargaining unit, Neb. Rev. Stat. § 48-838(2) provides that “the Commission shall consider established bargaining units and established policies of the employer.”  In analyzing composition of bargaining units, the Commission may also consider additional relevant factors. Marcy Delpardang v. United Electrical, Radio, and Machine Workers of America, 13 CIR 400 (2001). 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). These additional factors include: mutuality of interest in wages, hours and working conditions, duties or skills of employees, extent of union organization among employees, the desires of the employees, a policy against fragmentation of units, the established policies of the employees, and the statutory mandate to insure proper function of operation of governmental service. These factors are not the only factors to be considered and equal weight need not be given to each factor. Sheldon Station Employees Ass’n v. Nebraska Pub. Power Dist., 202 Neb. 391, 275 N.W.2d 340, 342 (1983). The factors appropriate to a bargaining unit consideration and the weight to be given each such factor must vary from case to case depending upon its particular applicability in each case.

Community of Interest:

            The threshold 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, 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 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.  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).

Part-time Custodians:

            The Petitioner argues that the bargaining unit should include part-time custodians since the testimony established that the part-time custodians perform the same job duties as the full-time custodians. The Respondent maintains that the part-time custodians are on-call, casual employees, who should be excluded from the unit because they lack a community of interest with the full-time bargaining unit employees.

            The immediately preceding contract did not include any part-time custodians in the bargaining unit. However, the part-time custodians have identical job duties and skills as the full-time custodians. The part-time custodians clean the same concourses and terminal as the full-time employees, utilizing the same methods in performing their daily job functions. While the hours they work fluctuate slightly, the evidence proves they work regular part-time shifts and are not on-call employees. There is also strong evidence of interchange amongst part-time and full-time custodians. A part-time custodial employee testified at trial that she was a full-time custodian and then went to part-time for medical reasons. Furthermore, there is potential for interchange to occur in the future as one of the other current part-time custodial employees is in line for a full-time custodial position when one becomes available through a vacancy. Both the full-time custodians and part-time custodians are supervised by the custodial manager, Girard Hunter. The Commission finds compelling evidence of a community of interest between the full-time and part-time custodians. The Commission will include the part-time custodians within the proposed bargaining unit.

Part-time Communications Center Employees:

            The Petitioner argues that the Commission should place the part-time Communications Center employees in the bargaining unit since the employees essentially do the same work as the full-time employees. The Respondent argues that the part-time Communications Center employees should be excluded from the bargaining unit because they do not qualify for benefits, are compensated at a lower rate than the bargaining unit employees and they are currently excluded from the current bargaining unit.

            The immediately preceding contract did not include any part-time Communications Center employees and while the part-time employees do not qualify for benefits and are compensated at a lower rate, it is clear that the part-time employees perform an identical function as do the full-time employees. The job duties, skills, and working conditions are identical. The part-time Communications Center operators use the same equipment and even sit in the same chairs as the full-time Communications Center operators. The Commission finds convincing evidence that the part-time Communications Center operators should be included in the proposed bargaining unit. The Commission will include the part-time employees in the same bargaining unit as the full-time employees in the Communications Center.

Part-time Administrative Assistant in the Field Maintenance Department:

            The Petitioner argues that the part-time administrative assistant should be part of the bargaining unit because the administrative assistant has daily contact with other employees in the Field Maintenance Department and works only with those employees and not with any other clerical workers at the Omaha Airport Authority. The Respondent argues that the part-time administrative assistant should be excluded from the bargaining unit because the administrative assistant is a part-time clerical employee who does not share a mutuality of interest with the other employees in the bargaining unit.

            While no other employees in the Field Maintenance Department do the work of the part-time administrative assistant, there is a significant connection in the established policies of the employer between the administrative assistant and the other employees in the Field Maintenance Department. The administrative assistant has daily interaction with the twenty-two full-time Field Maintenance workers, entering all their purchase orders into the computer. Both the Field Maintenance workers and the administrative assistant are under the Field Maintenance Manager, Mike Fleharty. The Respondent attempted to distinguish the administrative assistant from the proposed bargaining unit because the administrative assistant was a part-time employee. However, the administrative assistant’s regular part-time status does not affect the administrative assistant’s community of interest with other members of the bargaining unit. While the administrative assistant does not share similar wages and hours, the administrative assistant works with the Field Maintenance workers in the central nerve center of the Department.

 Furthermore, undue fragmentation would occur if the administrative assistant was left out of the proposed bargaining unit. The public policy provisions of the Commission of Industrial Relations Act in Neb. Rev. Stat. § 48-802 require that the Commission 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. Grand Island Educ. Ass’n v. Hall County School Dist. No. 40-0002, a/k/a, Grand Island Public Schools, 14 CIR 141 (2003). The administrative assistant is the only part-time assistant in the Field Maintenance Department. The administrative assistant does not work with other administrative clerical employees, but instead works with employees in the Field Maintenance Department. Therefore, to remove the administrative assistant from the proposed bargaining unit would cause undue fragmentation. We conclude that because the administrative assistant shares a community of interest with the proposed bargaining unit, and that leaving the administrative assistant out of the bargaining unit would result in undue fragmentation, the administrative assistant’s part-time position should be included.

Tow-Truck Drivers:

            The Petitioner argues that the Commission should include the tow-truck drivers in the bargaining unit because the drivers report directly to the Field Maintenance manager and have daily contact with other employees in the Field Maintenance Department. The Respondent argues that the tow-truck operators should be excluded from the bargaining unit because they do not work along-side, nor do they have a community of interest in common with the other bargaining unit employees, and because the tow-truck drivers work on an irregular basis.

In Marcy Delpardang v. United Electrical, Radio, and Machine Workers of America, 13 CIR 400 (2000), the Commission amended a bargaining unit by removing sixteen secretaries from a bargaining unit that included custodians and maintenance workers. In Delpardang, the Respondent maintained that it was inappropriate to sever the secretaries because amendment of the bargaining unit would cause undue fragmentation. In Delpardang, the Commission recognized the important public policy of avoiding undue fragmentation of bargaining units. However, the Commission noted that Nebraska’s policy against undue fragmentation did not override the basic requirement of community of interest in defining appropriate bargaining units. See Sarpy County Pub. Employees Ass’n v. County of Sarpy, 220 Neb. 431, 440, 370 N.W.2d 495, 501 (1985). In Delpardang, the Commission held that the amendment of the bargaining unit did not result in undue fragmentation because the secretaries inherently lacked a community of interest with the other bargaining unit members. Therefore, the Commission concluded that the secretaries should be amended out of the bargaining unit.

In the instant case, the Petitioner has the burden of proof to demonstrate that the tow-truck drivers share a community of interest with other members in the bargaining unit. See Fraternal Order of Police, Lodge 41 v. County of Scotts Bluff, 13 CIR 236 (1999). The Petitioner has not presented any direct evidence to prove the part-time tow-truck drivers share a community of interest with other proposed bargaining unit members. The established policies of the employer keep the tow-truck drivers separated from other bargaining unit members because the group of employees was only recently added due to the increased need for security around the airport since September 11, 2001.  Except for a rare occasion when snow removal is necessary, the tow-truck drivers and other bargaining unit members do not share the same wages, hours, working conditions, job duties or skills. The tow-truck drivers have not been organized in the past and there is no testimony regarding their desire to be included in the proposed bargaining unit. There is no evidence that other members of the bargaining unit have performed tow-truck driver work, and very little evidence that tow-truck drivers perform any work of the other bargaining unit members, except for the infrequent need for snow removal. As in Delpardang, while not placing the tow-truck drivers in with the other bargaining unit members may cause fragmentation, such fragmentation is not undue fragmentation since there is no evidence that the tow-truck drivers share a community of interest with the other bargaining unit members. Therefore, the Commission will not include the tow-truck drivers as part of the bargaining unit.

ELECTION:

The Petitioner requests an election to be held pursuant to the Commission’s decision and the Intervener also requests to be placed upon the election ballot. Within five business days of this Order, the employer shall furnish to the Commission a typed, alphabetized list of employees in the above described unit as of the filing date of the Petition, which was September 21, 2006, so that the Commission can conduct another test of the showing of interest. If the Petitioner does not achieve its showing of interest due to the enlargement of the unit beyond what was originally requested, the Commission shall allow 72 hours to furnish additional authorization cards from employees in the newly designated bargaining unit. An election shall be ordered in the below designated unit as soon as practical, including both the Petitioner and the Intervener as possible bargaining unit representatives.             

Designation of Unit

            The bargaining unit shall be designated as follows:

All employees of the Omaha Airport Authority, who are regular, full-time employees and all part-time employees who are not supervisors, seasonal or temporary employees, employed in the following departments: Field Maintenance Department (excluding part-time tow-truck drivers), Building Engineer’s Department, Custodial Department and Communications Center.

IT IS THEREFORE ORDERED:

            1.         That the appropriate bargaining unit shall be: 

                        All employees of the Omaha Airport Authority, who are regular, full-time employees and all part-time employees who are not supervisors, seasonal or temporary employees, employed in the following departments: Field Maintenance Department (excluding part-time tow-truck drivers), Building Engineer’s Department, Custodial Department and Communications Center.

2.            Within five business days of this Order, the employer shall furnish to the Commission a typed, alphabetized list of employees in the above described unit as of the filing date of the Petition, which was September 21, 2006, so that the Commission can conduct another test of the showing of interest. If the Petitioner does not achieve its showing of interest due to the enlargement of the unit beyond what was originally requested, the Commission shall allow 72 hours to furnish additional cards. 

3.         An election shall be ordered in the above designated unit as soon as practical, including both the Petitioner and the Intervener as possible bargaining unit representatives. 

All panel judges join in the entry of this order.