3 CIR 141 (1976)


An Unincorporated Association, |
Petitioner, |
Subdivision of the State of |
Nebraska, |
Respondent. |

Appearances: For the Petitioner: Theodore L. Kessner

For the Respondent: Robert Cannella

Before: Judges Wall, Kratz & Green


This industrial dispute comes before us for a determination of an appropriate unit for bargaining at the Metropolitan Technical Community College. The Clerk's Report shows the petitioner to be entitled to an election under §48-804.01 R.S. Supp. 1974 and no one has challenged that report under §48-817, R.R.S. 1943. We find we have jurisdiction of the parties and of the subject matter.

The petitioner, Metropolitan Technical Community College Education Association, contends for a unit it claims is a "teaching" unit, using "teach" as defined in §79-101, R.R.S. 1943, which would include Instructors, Counselors, Vocational Evaluators, Program Heads and Librarians. The respondent contends for a unit of only instructors. Apparently until the time of trial, neither party thought of the possibility of two units. [1]

The position of respondent is contrary to all recent history of public employee labor relations, which shows the employer demanding larger and larger units in order to reduce the number of bargaining agents. See. Bargaining Unit Issues: Problems, Criteria, Tactics, 1 Trends in Public Sector Labor Relations 67 (1972-73). The position of the respondent is also contrary to the legislative policy of this state, which is to reduce the number of bargaining agents an employer must face. See the legislative history of LB 1228, 1972, related in AFSCME v. Dept. of Roads , 3 CIR Adv. 77, 3 CIR 128/138-1 (1976). This court has applied this rationale in the majority opinion rejecting fragmentation in IBEW v. State , 3 CIR Adv. 32, 3 CIR 133/134-1 (1976). Whatever the diverse backgrounds of the members of the unit here may be, they are workers directing their efforts to the furtherance of the students' education. Their interest is common and mutual in wages, benefits and working conditions and there are no demonstrated or perceived conflicts of interest. Certainly if a unit including park workers and secretaries is proper for a municipality, a unit including instructors and counselors at a two-year community technical college is proper.

Thus, having determined that one unit is proper here, rather than two, we turn to the question of who should be in it. We have no problem excluding Division Chairmen, the Assistant Division Chairman, the Coordinator of Library Services and levels above them from the unit as supervisors. We, likewise, have no problem in including Instructors, Counselors, Vocational Evaluators and Campus Librarians, regardless of the ultimate source of their compensation. The problem arises with Program Heads. There is no testimony here, as there was in AAUP v. Regents , 3 CIR Adv. 71, 3 CIR 150-1 (1976) that like the Department Chairmen, at the University in Lincoln, they are chosen by the faculty and that the job is avoided by many as an interference with their academic pursuits. Petitioner's attempt to analogize the situation to that of the University of Nebraska at Lincoln thus fails. Instead, we have testimony that Program Heads sometimes supervise units exceeding in size that of some Divisions, and that they are the first link in the chain of discipline and discharge, a chain leading eventually to the Board governing the college. At this state of the evidence, then, we must conclude that the petitioner has failed to carry the burden of proof to show that they are not supervisors. We, thus, exclude Program Heads from the unit.

A single bargaining unit is thus established: All full-time and regular part-time employees of Metropolitan Technical Community College holding positions as Instructor, Counselor, Vocational Evaluator and Campus Librarian.

An election will be held within a reasonable time from the filing of this Opinion. Judge Benjamin M. Wall is designated as the Court's representative for the election, which will be carried out under the immediate supervision of the Clerk of the Court, janet Stewart Arnold.

The attorneys for the parties will meet with the Court's representative at 9:00 A.M. on the 7th day of June, 1976, in LC-3 of the Omaha/Douglas County Civic Center to agree upon or have determined all procedural questions concerning the election not covered by Rule 9, adopted May 6, 1976. Pat's Court Reporting Service is appointed as reporter for the hearing.

Entered June 2, 1976.

[1]Petitioner has the requisite 30% in each unit if two were to be created.