17 CIR 262 (2012)  Appealed April 18, 2012   

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Entered March 28, 2012

APPEARANCES:

Before:  Commissioners Blake, Burger, and Lindahl

BLAKE, Commissioner

NATURE OF THE CASE: 

On September 16, 2011, Lancaster County (“Petitioner”) filed a Petition to amend a certified bargaining unit containing employees of Petitioner who are members of AFSCME Local 2468 (“Respondent”), stating that certain employees in the bargaining unit do not share a community of interest and should be removed from the bargaining unit.  Respondent answered that the employees in the bargaining unit do share a community of interest and alleged that Petitioner failed to bargain in good faith with Respondent regarding the composition of the bargaining unit. 

Trial was held on November 28, 2011, on the issue of whether certain job classifications in the bargaining unit share a community of interest with the remaining job classifications as to justify keeping the bargaining unit intact.  Additionally, the question arose as to whether Petitioner should have first entered into good faith negotiations with Respondent regarding an amendment to the bargaining unit prior to filing this action with the Commission.

FACTS:

            The 12 job classifications in question have been a part of the AFSCME bargaining unit since October 8, 1974, and there is no evidence that the appropriateness of such unit has ever been questioned before or mentioned prior to filing this action with the Commission.  Additionally, the parties did not negotiate the bargaining unit prior to filing this action. 

The job classifications in question are Juvenile Detention Officers (“JDOs”), and 11 classifications within the Lancaster County Engineering Department: Equipment Mechanic I, Equipment Mechanic II, Heavy Truck Operator, Equipment Operator I, Equipment Operator II, Senior Equipment Operator, Fuel Truck/Paint Striper Operator, Maintenance Stores Clerk, Laborer, Labor Supervisor, and Road Construction and Maintenance Helper (collectively, “Road Maintenance Workers”).  Notably, these 12 job classifications were included in the Petition for wage and benefits determination in Case 1277, filed by the County on the same date as the Petition in this action.

Juvenile Detention Officers are responsible for supervising juveniles confined to secure detention at the Lancaster County Youth Services Center (“Center”).  JDO job duties include maintaining the safety of the facility; security and safety of the residents throughout transport to and from the facility; supervising residents within the facility; operating Central Control; and initiating disciplinary and restraint actions as needed for resident behaviors.  JDOs work one of three scheduled shifts: 6:00 a.m. to 2:00 p.m., 2:00 p.m. to 10:00 p.m. and 10:00 p.m. to 6:00 a.m.  Because the Center must maintain adequate coverage at all times- meaning, the number of JDOs required to supervise residents is dependent on the population of the Center at that particular time- JDOs do not receive a lunch break unless working a 12-hour shift.  JDOs are afforded 15-minute breaks if there is enough coverage or the residents are locked down before the break. 

Equipment Mechanic I performs maintenance work and repair on cars, trucks, small trucks, and other small equipment.  Work hours for this position would be Monday through Friday, 8:00 a.m. to 4:30 p.m. in the wintertime, and 7:00 a.m. to 3:30 p.m. in the summertime.  Equipment Mechanic I employees are stationed to work out of what is considered the main shop.  An Equipment Mechanic I employee must hold a commercial drivers license (“CDL”).  This position could only be interchanged with an Equipment Mechanic II.

Equipment Mechanic II performs the same work as Equipment Mechanic I on heavy equipment such as bulldozers, motor graders, and dump trucks, and is also stationed at the main shop.  Equipment Mechanic II employees have the same work days and hours as Equipment Mechanic I, with the opportunity to work nights, weekends, and overtime during snowy conditions.  An Equipment Mechanic II employee must hold a CDL and special certification in Motor Vehicle Refrigerant Servicing.

Heavy Truck Operators drive tandem axle trucks weighing at least 26,000 pounds to transport rock, dirt, gravel and other construction-related materials to various sites.  Heavy Truck Operators must hold a commercial drivers license.  Work hours for Heavy Truck Operators are Monday through Friday, 8:00 a.m. to 4:30 p.m. in the winter, and 7:00 a.m. to 3:30 p.m. in the summer.   During the winter, Heavy Truck Operators will operate heavy vehicles necessary to plow snow and sand roads, with the opportunity to work weekends and overtime during snowy conditions.  Heavy Truck Operators check in to work at County patrol stations in various parts of the County, but spend the majority of their day out on the county roads.  Heavy Truck Operators must hold a CDL.  These employees could be substituted or replaced by Senior Equipment Operators. 

Equipment Operator I employees drive light and heavy trucks, including single-axle trucks weighing 26,000 pounds or more.  An Equipment Operator I must hold a CDL.  Work hours are Monday through Friday, 8:00 a.m. to 4:30 p.m. in the winter, and 7:00 a.m. to 3:30 p.m. in the summer.  Like Heavy Truck Operators, an Equipment Operator I may work nights, weekends or overtime during snowy conditions.  These positions also check in at county patrol stations, and the majority of work is performed on county rural roads.  These employees could be substituted or replaced by a Heavy Truck Operator.

Equipment Operator II operates heavy construction and road maintenance equipment such as motor graders and bulldozers.  Equipment Operator II employees work the same hours as an Equipment Operator I, with the same opportunity for overtime, night and weekend work during snowy conditions.  They are stationed at patrol stations throughout the county and perform their work out on the rural county roads.  A Heavy Truck Operator or a Senior Equipment Operator could substitute or replace this position.

Senior Equipment Operators perform the same work as an Equipment Operator II, with the exception that this position requires the employee to hold a CDL.  Senior Equipment Operators have the same work hours and work days as the previously mentioned positions, with the possibility to work overtime, nights and weekends during snowy conditions.  The duty location for this position is also at the patrol stations throughout the county, with work performed out on the rural county roads.  An Equipment Operator II could substitute or replace a Senior Equipment Operator to operate equipment that does not require a CDL.

Fuel Truck/Paint Striper Operators install traffic signs throughout the county, deliver fuel to patrol stations, and operate paint striper trucks.  These employees are required to hold a CDL and a Hazmat endorsement.  Fuel Truck/Paint Striper Operators have the same work hours and work days as the previously mentioned positions, with the possibility to work overtime, nights and weekends during snowy conditions.  This employee could be substituted or replaced by a Labor Supervisor.

The Maintenance Stores Clerk is responsible for ordering and distributing parts and maintenance goods needed at the main shop, patrol stations, and other field work areas of the County.  The Maintenance Stores Clerk works the same work days and hours as the previously mentioned positions, but would rarely be needed to work nights or weekends.  The duty location for this position is the main shop, but may periodically go into the field to deliver parts to a mechanic.  This position is supervised by the Shop Supervisor.  The Maintenance Stores Clerk position does not require any specialized training, and can be substituted or replaced by the Shop Supervisor and the Mechanic Supervisor.

Laborers perform construction and maintenance work such as mowing or asphalt repair.  Laborers work the same work days and hours as the previously mentioned positions, with a possibility to work overtime during snowy conditions.  Duty positions for Laborers would be at the main shop and the County patrol stations.  Laborers are supervised by District Supervisors and the Labor Supervisor.  A Laborer could be substituted or replaced by an Equipment Operator I and Heavy Truck Operator.

Labor Supervisors supervise Laborers while out on a worksite, and are stationed at the main shop.  These positions work the same work days and hours as the previously mentioned positions, with the possibility of working overtime during snowy conditions.  Labor Supervisors are required to hold a CDL.  A Labor Supervisor could be substituted or replaced by a District Supervisor, which is not a position within the Union.

Finally, Road Construction and Maintenance Helpers perform unskilled, entry level seasonal construction and maintenance work.  This position would be based out of the patrol stations in the County as needed.  No one currently holds this field position.

            We take judicial notice of the filings by the parties in Case Nos. 1274 (filed by AFSCME against the County, alleged prohibited practices) and 1277 (filed by the County, seeking a wage and benefits determination for the contract year of September 8, 2011 through September 5, 2012).  We are mindful that negotiations were held for a contract for 2011-2012, that they were unsuccessful, and that only upon a lack of success did the Petitioner raise any issue regarding the make-up of the bargaining unit with which it was negotiating.  We are also mindful that the Union president and most of the members of the Union’s Executive Committee are in the job classifications the County seeks to remove from the Union.   

Mandatory v. Permissive Subject of Bargaining: 

Petitioner is seeking to amend the bargaining unit by removing the above-listed job classifications, alleging that these classifications do not share a community of interest with the other classifications within the bargaining unit.  Commission Rule 12 allows a party to file a petition to amend the scope of a bargaining unit.  The Commission can amend bargaining units based on the implied authority to determine questions of representation under Neb. Rev. Stat. § 48-838.  Respondent asserts that Petitioner should not be allowed to seek amendment of the bargaining unit until after Petitioner first seeks consent of Respondent through good faith negotiations.  Petitioner argues that amending a certified bargaining unit is a permissive subject of bargaining and good faith negotiations on such an amendment is not a condition precedent to filing a petition under Commission Rule 12.   

There are three categories of bargaining subjects: mandatory, permissive, and prohibited.  Of the three categories, the Industrial Relations Act only requires parties to bargain over mandatory subjects.  Fraternal Order of Police Lodge No. 8 v. Douglas County, 16 CIR 401 (2010).  Permissive bargaining subjects are legal subjects of bargaining which do not fit within the definition of mandatory.  Either party may raise a permissive subject during bargaining, but the non-raising party is not required to bargain over permissive subjects.  Id.

            This Commission has previously decided that changes to the scope of a bargaining unit are permissive subjects of bargaining, whether the bargaining unit has been certified or voluntarily recognized.  Fraternal Order of Police, Lodge 41 v. County of Scotts Bluff, 13 CIR 270 (2000).  In Lodge 41, the Commission ruled that an employer or bargaining unit representative must obtain the agreement of the other party or file a petition with the Commission pursuant to Commission Rule 12 to change the scope of the unit, if they wish to have that unit changed. 

Amending the Bargaining Unit:

In determining the appropriateness of an existing collective bargaining unit, the statute provides that “the Commission shall consider established bargaining units and established policies of the employer.”  Neb. Rev. Stat. § 48-838(2).  In analyzing § 48-838, the Nebraska Supreme Court has determined that the requirements in the statute are not exclusive, and that the Commission may consider additional relevant factors when determining the appropriateness of a proposed bargaining unit.  AFSCME v. Counties of Douglas and Lancaster, 201 Neb. 295, 267 N.W.2d 736 (1978).  These additional factors include “the mutuality of interest in wages, hours and working conditions, duties and 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.”  International Brotherhood of Electrical Workers Local 1536 v. Lincoln Electrical System, 215 Neb. 840, 842, 341 N.W.2d 340, 341-342 (1983).

The Commission also carefully considers the public policy surrounding collective bargaining agreements.  In Nebraska, the public policy as expressed in § 48-802 is “the continuous, uninterrupted and proper functioning and operation of the governmental service…”  This public policy underpins the Commission’s desire to preserve a bargaining unit’s stability and continuity, absent a reason for disruption or alteration of the status quo.  Marcy Delperdang v. United Electrical, Radio, and Machine Workers of America, 13 CIR 400 (2001).  When determining the appropriateness of an existing collective bargaining unit, the Commission must give due regard to this public policy while considering all the evidence presented.

The party seeking modification of an existing collective bargaining unit has the burden to prove by preponderance of the evidence that it is entitled to the modification sought.  Kimball Educ. Ass’n v. Kimball Public Schools, 14 CIR 242 (2003).

While Lodge 41 does not specifically answer the question whether a party can resort to the latter remedy without first seeking the prior remedy, amending the scope of a bargaining unit is a permissive subject of bargaining.  As such, bargaining prior to filing a petition with the Commission for a change in the unit is therefore not required.  Finding that Petitioner’s actions in filing this petition are permissible, we will next determine whether the bargaining unit should be amended to exclude the job classifications discussed below.

 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 inclusions in a single unit.  When determining community of interest, the Commission analyzes which factors should be considered and the weight each factor receives.  The generally recognized factors in determining an appropriate bargaining unit have been identified as including:

1.         The mutuality of interest in wages, hours and working conditions;

2.         Duties and skills of employees;

3.         Extent of union organization among employees;

4.         The desires of the employees;

5.         A policy against fragmentation of the units;

6.         The established policies of the employer;

7.         The extent of interchange of employees in the proposed bargaining unit; and

8.         The statutory mandate to ensure proper functioning and operation of governmental service.

Sheldon Station Employees Association v. NPPD, 202 Neb. 391, 275 N.W.2d 816 (1979).  Sheldon Station involved the question of whether an employee group should be recognized as a bargaining unit.  Where there is an effort to modify an existing long-standing bargaining unit, there are additional considerations.

The case of  Kimball Education Association v. Kimball County School Dist., 14 CIR 242 (2003) involved a bargaining unit that represented 58 employees, including teachers, counselors and the school nurse.  The unit had been recognized for 16 years and there was no evidence that there had been problems for either the school district or the association in negotiating on behalf of the school nurse and the counselors as part of the bargaining unit with the teachers.  This was discussed as a relevant factor to be considered, which we will refer to as the history of bargaining.

The listed factors are not necessarily the only factors to be considered, nor must each such factor be given equal weight.  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 the case.  We will weigh the applicable factors as follows: 

Mutuality of Interest in Wages, Hours, and Working Conditions, the Evidence Supports Petitioner’s Position:

The Nebraska Supreme Court in Sheldon Station Employees Association v. NPPD held that mutuality of interest, wages, hours, and working conditions must be given equal weight in determining whether a community of interest exists.  Sheldon Station, 202 Neb. 391, 395, 275 N.W.2d 816 (1979). 

In this case, the wages, hours, and working conditions for Equipment Mechanic I, Equipment Mechanic II, Heavy Truck Operator, Equipment Operator I, Equipment Operator II, Senior Equipment Operator, Fuel Truck/Paint Striper Operator, Maintenance Stores Clerk, Laborer, Labor Supervisor, and Road Construction and Maintenance Helper employees are similar to each other, but not to other classifications within the bargaining unit.  All 11 classifications have similar work days and work hours, and can be called in to work overtime, nights, or weekends during snowy conditions.  These employees are stationed at various patrol stations throughout the county or may perform the majority of their work out on the county roads away from their duty stations.

The wages, hours, and working conditions for Juvenile Detention Officers also differ from the other job classifications within the bargaining unit.  JDOs work shifts at a 24-hour secure facility, not at the courthouse with other employees in the bargaining unit.  Because the Center never closes, JDOs must work either one of the three available 8-hour shifts or a 12-hour shift.  JDOs do not receive a lunch break unless working a 12 hour shift, and do not take breaks unless there are enough JDOs to cover or the juveniles are locked down.  By contrast, the only other bargaining unit job classification at the Center, Account Clerk I, works from 8:00 a.m. to 4:30 p.m. Monday through Friday, does not work nights, weekends or holidays, does not bid for shifts, and does not receive shift deferential pay like JDOs. 

            Therefore, with regard to mutuality of interest in wages, hours, and working conditions, the evidence supports Petition’s position. 

Job Duties and Skills:

Petitioner argues that the job duties for the classifications in question are substantially different from the job duties and skills required for the other job classifications within the bargaining unit.  Respondent counters that the diversity within the job duties has not presented a problem in the past with representation within the bargaining unit, and that such diversity is not unusual in public sector workers. 

The evidence supports Petitioner’s argument that job duties and skills for Equipment Mechanic I, Equipment Mechanic II, Heavy Truck Operator, Equipment Operator I, Equipment Operator II, Senior Equipment Operator, Fuel Truck/Paint Striper Operator, Maintenance Stores Clerk, Laborer, Labor Supervisor, and Road Construction and Maintenance Helper employees are very different than other classifications within the bargaining unit.  With the exception of Equipment Operator II, Maintenance Stores Clerk, and Road Construction and Maintenance Helper, these positions require an active CDL.  The employees receive specialized training in handling the equipment necessary to clear, maintain, and repair roads.  We agree with Petitioner that the skills required to perform these jobs are unlike those used by other classifications within the bargaining unit.

Petitioner also argues that the difference in job skills between Juvenile Detention Officers and the rest of the bargaining unit are even more pronounced, and JDOs should be considered guards under the Guard/Non-Guard distinction and therefore excluded from the bargaining unit.  Respondent argues that the Juvenile Detention Officers are not guards because the Juvenile Detention Officers do not have the potential to guard other members of the bargaining unit.  The Commission has repeatedly held that guard and non-guard employees can neither be in the same bargaining unit nor be represented by the same union.  Nebraska Fraternal Order of Police, Lodge 18 v. University of Nebraska, 15 CIR 255 (2006); Fraternal Order of Police, Lodge 41 v. County of Scotts Bluff, 13 CIR 236 (1999).  A guard under this 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, 13 CIR 236 (1999)(quoting 29 U.S.C. § 159(b)(3)).  To determine if an employee is a guard, we have focused our inquiry on whether a potential conflict of loyalties exists:  “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’…” Id. (quoting CWA v. Hall County, 12 CIR 53 (1994)).

            In the present case, Juvenile Detention Officers guard the juveniles detained in the Center, secure and protect the premises from damage caused by the juvenile detainees or visitors, ensure the safety of the juvenile detainees and visitors, and are subject to Nebraska Minimum Jail Standards for Juvenile Detention Facilities.  Like police officers or corrections officers, Juvenile Detention Officers are trained and authorized to use force and restraints on juveniles and can confront both the juvenile detainees and anyone else on the premises.  These employees   enforce these rules against “employees and other persons,” which indicates that Juvenile Detention Officers fit the very definition of ‘guard’ for purposes of the Guard/Non-Guard distinction.  The evidence supports Petitioner’s position that that Juvenile Detention Officers are guards and have job duties and skills that are substantially different from the job duties and skills of other job classifications in the existing bargaining unit.

 Established Policies of the Employer:

The Nebraska Supreme Court has held that while the established policies of the employer should be considered in determining whether a community of interest exists in a single bargaining unit, established policies of the employer are not a controlling factor.  American Association of University Professors v. Board of Regents, 198 Neb. 243, 259, 253 N.W.2d 1 (1977)(“AAUP”).  The established policies of the employer should be considered as one factor and be weighed against other factors in determining whether a community of interest exists.

            In this case, all job classifications within the bargaining unit are covered by the AFSCME Bargaining Agreement, which contains uniform policies to be followed by all who are covered by it.  With regards to Equipment Mechanic I, Equipment Mechanic II, Heavy Truck Operator, Equipment Operator I, Equipment Operator II, Senior Equipment Operator, Fuel Truck/Paint Striper Operator, Maintenance Stores Clerk, Laborer, Labor Supervisor, and Road Construction and Maintenance Helper employees, this uniformity of policy favors Respondent’s argument that the bargaining unit employees are treated the same in the CBA.  

            JDOs, however, must abide not only with the uniform policies found in the CBA, but with the policies and procedures of the Lancaster County Youth Services Center, which are not applicable to other members of the bargaining unit.  These policies are reviewed and approved by the Nebraska Jail Standards Board and are based on all applicable laws and the Nebraska Standards for Juvenile Detention Facilities.  This difference in employer policies and procedures regarding Juvenile Detention Officers favors Petitioner’s argument that Juvenile Detention Officers are treated differently by the County.   

Extent of Union Organization: 

            The bargaining unit has been in place since 1974, and has successfully represented all of the members of the unit in negotiations with the Petitioner county.  The evidence shows that 54% of the juvenile detention officers and 84% of the employees in the remaining 11 classifications at issue in this case are dues-paying members of the association.  The current and prior union presidents are in the job classification at issue in this case.  A majority of the members of the Executive Committee of the Union are in the job classifications at issue in this case.   

Desires of the Employees: 

            Petitioner argues that the desire of employees to either remain or be removed from the bargaining unit is a factor which carries no weight when viewed in conjunction with the other factors being considered. While this factor was said to be of no legal significance in Sheldon Station, 202 Neb. at 402, that was not in the context of modifying a long-standing unit.  Petitioner points out that no direct testimony was offered from any employees regarding their desire to stay part of the bargaining unit.  Respondent provided testimony that the desire of employees to be part of a union can be seen by the number of employees in the classifications at issue in the case who pay dues to the union.

As previously mentioned, the bargaining unit has been in existence since 1974.  The bargaining unit has not submitted a petition to the Commission to decertify, and the composition of the bargaining unit was called into question by the County, not the employees.  This leans toward a showing of employee desire to stay in the current bargaining unit.   

Extent of Employee Interchange:

            When making a determination of a community of interest, the Commission considers only employee interchange, where an employee from one job classification replaces or substitutes for an employee of a different job classification.  We do not consider employee interaction, where two or more job classifications may correspond with one another in order to perform daily job duties.  See Kimball Education Assoc., supra. 

The evidence presented shows that the Equipment Mechanic I, Equipment Mechanic II, Heavy Truck Operator, Equipment Operator I, Equipment Operator II, Senior Equipment Operator, Fuel Truck/Paint Striper Operator, Maintenance Stores Clerk, Laborer, Labor Supervisor, and Road Construction and Maintenance Helper employees interchange with each other, but not with other job classifications within the bargaining unit.  The evidence also shows that no other job classification could substitute or replace a Juvenile Detention Officer except another Juvenile Detention Officer.  Based on testimony and evidence presented, we find that the 12 job classifications in question lack interchange with other employees within the bargaining unit.

Undue Fragmentation:

             The evidence clearly establishes that differences between the 11 Road Maintenance Worker classifications in question and the other employees.  It also well establishes the differences between the Juvenile Detention Officers and the rest of the Union members.  The past history of this Union is strong and lengthy, and a change would result in potentially breaking this unit into three bargaining units.  However, the fragmentation is not a problem if it is not undue fragmentation.           

It is appropriate to amend a bargaining unit if the Commission finds the bargaining unit members lack a community of interest and the amendment does not result in undue fragmentation.  See Marcy Delperdang v. United Electrical, Radio, and Machine Workers of America, 13 CIR 400.  To determine if amending a bargaining unit would result in undue fragmentation, we must examine this case in light of the statutory presumption contained in Neb. Rev. Stat. § 48-838(2).  The Nebraska Supreme Court has held that “it is clear that in enacting subsection (2) of section 48-838, the Legislature properly sought to avoid undue fragmentation of bargaining units.”  AAUP, 198 Neb. at 259.

            As we stated in Marcy Delperdang, we recognize the important public policy of avoiding undue fragmentation.  Petitioner presented evidence showing that separation of these job classifications from the AFSCME bargaining unit would not interfere with the continuous operational efficiency of governmental services, nor would it impede the county in developing uniform employment policies and practices.  We therefore find that this factor weighs in favor of Petitioner.

History of Bargaining:

            The union has a 37-year history of successfully representing all members of the unit in negotiations with the Petitioner.  There is no evidence of any problems for either the Petitioner, the union, or any of the employees in the union, process or any other aspect of union representation of its members.

            Petitioner argues that the past history of the bargaining unit should not overcome evidence that the job classifications in question do not share a community of interest, with the rest of the job classifications in the bargaining unit.  Respondent contends that the past history of the bargaining unit is important in proving that the community of interest does in fact exist for these employees.  The fact that there has never before been a problem on either side regarding the makeup of the bargaining unit since its certification weighs in favor of the Respondent.

 CONCLUSION:

The evidence was persuasive that the Juvenile Detention Officers, Equipment Mechanic I, Equipment Mechanic II, Heavy Truck Operator, Equipment Operator I, Equipment Operator II, Senior Equipment Operator, Fuel Truck, Paint Striper Operator, Maintenance Store Clerk, Laborer, Labor Supervisor, and Road Construction and Maintenance Helper employees do not share a community of interest with the rest of the job classifications within the bargaining unit, and that the separation of these job classifications from the AFSCME bargaining unit would not interfere with the continuous operational efficiency of governmental services, nor impede the county in developing uniform employment policies and practices.  The differences in the duty stations, hours and working conditions, and lack of interchange, and job duties and skills, for the job classifications in question, are different from the other job classifications within the bargaining unit to the extent that they would not be included in the same bargaining unit if we were looking at a petition to certify a bargaining unit rather than to amend it.  These differences in this case are dramatic enough that we find each of the job classifications in question should be excluded from the bargaining unit.

However, removing these workers from the union in question at this time would leave a great number of the employees without a collective bargaining representative, and disrupt the current operations of the remaining bargaining unit, as the unit would be working with neither its president nor the majority of its executive committee.  It would leave the bargaining unit with an extreme disadvantage in going forward with Case No. 1277 for a determination of wages and working conditions, and it would leave the bargaining unit with a similar disadvantage in prosecuting Case No. 1274.  This would not serve the public purpose behind the Industrial Relations Act.

IT IS THEREFORE ORDERED that:

1.       The Road Maintenance job classifications in question do not share a community of interest with the remainder of the classifications in Local 2468.

2.      The Juvenile Detention Officers do not share a community of interest with the remainder of the classifications in Local 2468.

3.      The Commission shall determine the wages and working conditions of Local 2468 as it existed on the date of filing this action and Case No. 1277 for the contract year of September 8, 2011 through September 5, 2012, assuming that is the bargaining year finally determined to be correct and appropriate in Case No. 1277.  For all other purposes, the job classifications here in question will no longer be included in the bargaining unit of Local 2468. 

All panel commissioners join in the entry of this Order.