3 CIR 236 (1977). Affirmed. 201 Neb. 295, 267 N.W.2d 736 (1978).


Plaintiff, |
v. |
Defendants. | OPINION
Plaintiff, |
v. |
WELFARE, et al., |
Defendants. |

Before: Judges Wall, DeBacker and McGinley


These cases bring before us again the question of organization of social service workers in the State of Nebraska. In AFSCME v. Lancaster County , 196 Neb. 89, 241 N.W. 523 (1976), the Supreme Court determined that the state was a joint employer with each county of the social service workers of the type there sought to be organized. This determination, coupled with the prayer of the State of Nebraska herein for a single county-level statewide unit, effectively puts each county into controversy with the plaintiffs, whether they wish to be or not, and whether or not we would hold the plaintiffs' alternative prayer for a single county-level statewide unit to be sufficient to establish the dispute.[1] As hereinafter more specifically discussed, we find we have jurisdiction of the parties and of the controversy.

While some of the parties initially contended for the proposition that the United States was the employer, after the overruling of special appearances on that ground, the subject was not pursued by evidence. We have previously noted Federal Regulations precluding the United States from being considered as the employer of any state employee. See, e.g., 45 C.F.R. 205.202 (b). In the event the issue be deemed not abandoned, we find the United States not to be an employer of the personnel concerned.

Several of the parties raise the issue of the constitutionality of the statutes establishing this court and its jurisdiction. We have recently exhaustively discussed this question in AFSCME v. Dept. of Roads , 3 CIR 128/138-1. We have again reviewed the matter, and find no reason to deviate from our position there. The establishment of a peaceful mechanism for the settlement of disputes, a major advance toward civilization and away from barbarity, must be viewed as constitutional. Ironically, if the state is correct here, or in its appeal of AFSCME v. Dept. of Roads, supra , it will lose its Federal funding for the program under the Dept. of Welfare, 45 C.F.R. 70.5, 45 C.F.R. 205.200.

Most of the defendants contend that Council 32, AFSCME is not a labor organization as contemplated by the statute. Without exploring the question of labor litigation as ex necessitate representative or class litigation, we find that Council 32 meets the requirements of §48-801, R.R.S. 1943, at least as a minimum. See IBEW v. City of Hastings , 1 CIR 17-1 and CWA v. City of Hastings , 2 CIR 99-1.

The remaining major question is the establishment of an appropriate bargaining unit. The units of government with which we are here concerned, the State Department of Welfare and the 93 County Divisions of Public Welfare, administer the several major public welfare programs of the state. The programs are aid to dependent children, social services, medical assistance, the food stamp program and AABD. The "working" level is basically at the county divisions. The State Department of Welfare is primarily a supervisory agency, making and enforcing rules, monitoring the administration of the several programs by audit, visit and other formal and informal contact with the county divisions. The State also runs some direct service organizations, such as the Nebraska Center for Children and Youth. There appears to be little interchange of personnel between the state and the several counties. What interchange that does take place appears to be generally the upward movement of high level supervisors, such as a County Director moving to the state level to a higher supervisory position.

The plaintiffs contend primarily for individual county units, which would result in elections in four counties at the present time-Douglas, Lancaster, Sarpy and Scotts Bluff. Alternatively, the plaintiffs allege that a statewide unit at the county level is appropriate. The County of Lancaster contends for a single unit comprising both state and county level employees. It did not pursue this position with particular vigor during trial and evidence in support of this contention is sparse. The State of Nebraska and its allied counties contend for a single unit at the County level, but have now modified that claim to allege that the plaintiffs must make a 30% showing of interest in each of the 93 counties. The rest of the defendants argue either for single county units or for the proposition that the state is the sole employer. The latter position is, of course, foreclosed by the decision of the Supreme Court in AFSCME v. County of Lancaster , 196 Neb. 89, 241 N.W.2d 523 (1976).

The programs are funded by Federal, State and County funds. The Federal money is channeled primarily thru the State. State (Federal) funding takes care of virtually the entirety of the budget for county level operations, with less than 2% of the funding coming from county level monies-either local taxation or direct Federal support. County funds are spent to supplement Director's or other salaries, or for programs falling under the general heading of "welfare" but not provided for in the state plan.

All employees in the system are under the state merit system for selection, promotion, classification and grievance processing. Some informal grievance procedures are handled at the county level, and all recommendations from the State Merit Council Appeals Unit go to the local county for action. The compensation of employees is set by the state and the counties in a joint procedure. The state establishes several levels of compensation from which each county may select several consecutive steps for each of its positions. Lancaster County deviates from the steps in order to equalize certain job categories with its other employees. Other compensation disputes have a history of simple resolution. When State employees last received a pay increase, the desire of the state and some of the counties to raise the pay of the county employees was met simply by eliminating the bottom steps of the pay plan and adding steps at the top.

In determining the appropriate unit, we consider mutuality of wages, hours and working conditions (community of interest), duties and skills of employees, extent of union organization among employees, and desires of the employees. City of Grand Island v. AFSCME , 186 Neb. 711, 185 N.W.2d 860 (1971). We also consider the policy against fragmentation of units, IBEW v. State , 3 CIR 133/134-1 at 10. We further obey the statutory mandate of §48-838, R.R.S. 1943 to consider the established policies of the employer, and of §48-802, to assure the "proper functioning and operation of the governmental service." See AAUP v. Regents , 198 Neb. 243, 253 N.W.2d 1 (1977).

Balancing all of the factors, we conclude that a single unit of both state and county level employees would be inappropriate. There is no perceived community of interest, the dual employer complication affects only part of the group, there is no organization effort at all on the state level, there is no report of desire for organization at the state level, the vast majority of state-level employees differ widely in duties from county-level employees, and the announced policy of the sole employer at the state level is opposed to inclusion of those employees in the unit.

Again, balancing all of the factors, we find a single statewide county-level unit to be inappropriate. We find no community of interest in wages, working conditions or terms of service. Each County Board is free to pick its own pay levels and deviate from the state levels if it desires. The hours may vary from county to county as set by the individual County Board. There is little or no interchange of employees. More than half of the counties concerned have announced policies against a single statewide unit. Those counties who nominally support the State of Nebraska's contention for a single unit now have also joined in supporting a contention that a 30% showing of interest must be made in each county-a contention which if upheld effectively rules out a single county-level statewide unit. A single statewide county-level unit would force negotiations among employers and non-employees of any given employer. Such a unit might have the effect of forcing unionization on 89 county departments of public welfare whose employees are really not interested in being unionized. What little organization that has been done, successful or unsuccessful, has been with single county-level units in Douglas and Lancaster counties. Taking all these matters into account, we conclude therefore, that four single county units in Douglas, Lancaster, Sarpy and ScottsBluff counties are most appropriate.

We, therefore, establish four county-level units as the appropriate units as hereinafter described in the Counties of Douglas, Lancaster, Sarpy and Scotts Bluff.

The stipulations as to exclusions from the units leave us with the determination of the inclusion of certain Douglas County employees. We find that there is insufficient evidence of supervisory or confidential nature of the jobs of the payroll clerk and the employees in the personnel section to warrant their exclusion from the unit. The Clerk General IV's, other than Mrs. Eldrige, in Douglas County are all clearly supervisory positions.

The unit as established, therefore, is described as follows:

All regular full-time and part-time Nebraska Merit System employees employed in the separate above-named county Divisions of Public Welfare in the following Classifications:

Administrative Assistant Homemaker I

In Service Training Specialist Homemaker II

Engineering & Maintenance Transcribing Machine

Specialist Operator

Social Worker I Data Terminal Operator I

Social Worker II Data Terminal Operator II

Social Services Worker I Data Terminal Operator III

Social Services Worker II Housekeeper & Cook (Day

Social Services Worker III Care)

Social Services Worker IV Accounting Clerk II

Social Services Aide I Assistant Teacher

Social Services Aide II Clerk General I

Income Maintenance Clerk General II

Technician I Clerk General III

Income Maintenance Clerk General IV

Technician II Clerk Typist I

Income Maintenance Clerk Typist II

Technician III Clerk Typist III

Income Maintenance Secretary I

Technician IV Secretary II

Income Maintenance Aide I Legal Secretary I

Income Maintenance Aide II Clerk Aide I

Quality Control Reviewer I Clerk Aide II

Quality Control Reviewer II Clerk Stenographer I

Transportation Services Worker Clerk Stenographer II

Child Care Attendant I Messenger I

Child Care Attendant II Messenger II

Chore Services Worker Custodian I

Nursing Care Consultant Custodian II

Psychologist Telephone Operator &

Child Support Service Worker Receptionist

But, excluding all other employees and the following employees and their successors occupying their present positions (or the position itself, where no incumbent is shown), such position being either confidential or supervisory:


Regina Killeen Director's Secretary

Diane Phalen Director's File Clerk

Sharon Smith Adm. Assist.

Bernice Battiato Medical Billing Super.

Melodie Matson Service Control Super.

Beverly Richt South Clerical Super.

Edna Ellis Food Stamps Clerical Super.

Central Clerical Super.

Joanne McInerney Commodities Warehouse Super.

Labor Relations Secretary


Sonja Dvorak Clerk General IV

Georgia Skinner Clerk General IV

Lila Swanda Clerk General IV

Helen Wrann Secretary II

Corrine Mohr Homemaker II


Marcy Fitzgerald Secretary II

Scotts Bluff

Debra Silverman Social Service Worker III

Linda Steele Social Service Worker IV

Marge Gamet Income Maintenance Tech. III

Nancy Ryba Income Maintenance Tech. IV

Marylin Graveline Clerk General IV

Beverly Schaub Secretary I

An election within each of the four units herein determined shall be held as expeditiously as possible. Judge Benjamin M. Wall is appointed as the Court's Representative for such elections. Janet Stewart Arnold is appointed hearing examiner to determine initially all questions arising during the course of the elections. The elections shall be held under the immediate supervision of the Clerk of the Court. The parties shall meet with the Clerk at 10:00 o'clock, A.M., on the 3rd day of May, 1977, to agree upon or have determined all questions concerning the election not provided for in Rule 9.

Entered April 25, 1977.

1If necessary to a determination, the filing of a petition is a sufficient demand to establish the dispute.