3 CIR 23 (1975).


Petitioner, |
Respondents. |

Appearances: For Plaintiff, M.H. Weinberg

For Defendant, L. Bruce Wright

Before: Judges Wall, Kratz and DeBacker


The International Brotherhood of Electrical Workers, Local Union No. 1221, AFL-CIO (Petitioner), has requested this Court to determine appropriate units and direct an election among certain employees of the Nebraska Educational Television Commission (Commission) and the Board of Regents of the University of Nebraska (University).

The unit requested by Petitioner in Case No. 133 is a production unit, described as follows:

"All production personnel employed at the Nebraska Educational Television Commission performing duties in the following categories and/or classifications: including TV camera operator No. 1; TV camera operator No. 2; TV camera operator No. 3; lighting director; assistant lighting director; carpenter No. 1, carpenter No. 2. Excluding director; producer; assistants to producer; student production supervisor; studio production assistants; scene designer; assistant scene designer; video tape librarian; confidential secretary; clerk-typist; art director; television artist; art assistant; TV photo-specialist; photo lab technician; firm unit supervisor; cinematographers and all others."

The unit requested by Petitioner in Case No. 134 is an engineering unit, described as follows:

"All the engineering personnel whose principal place of employment is the Nebraska Educational Telecommunication Center located at 1800 N. 33rd Street, Lincoln, Nebraska, who are employed by the University of Nebraska and the Nebraska Educational Television Commission and are employed to perform duties in the following categories and/or classifications: TV engineer I; TV engineer II; School Technical Advisor; video tape engineer; maintenance engineer; remote unit engineer; studio engineer; closed circuit television engineer; network operation center engineer; dubbing engineers and audio engineers. Excluding guards, confidential secretary, building service employees, assistant chief engineer, chief engineer, director of engineering, assistant director of engineering and all others."

The production unit is composed solely of employees of the University and the engineering unit is composed of employees of both the University and the Commission. All of the employees listed in both units work at the television production facilities at 33rd and Holdrege Streets in Lincoln, Nebraska.

While the proposed engineering unit (Case No. 134) is composed of all engineering employees employed at the Nebraska Educational Television Network facility at 33rd & Holdrege in Lincoln, Nebraska, including those hired by the Commission and those hired by the University, it does not include Commission engineering employees who are located at satellite transmitter facilities, [1] nor does it include University engineering employees who are physically located at the University of Nebraska's Mead transmitter facility, the University of Nebraska-Omaha (UNO) Television Department, or the University of Nebraska Medical Center (UMC) Television Department. It covers only those engineering employees working at 33rd & Holdrege who are involved with the transmission and dissemination of television programs throughout the Nebraska Educational Television Network, as distinguished from engineering employees who deal with the television production function. Some of the programs transmitted are produced by University production personnel and some are purchase.

Because they are involved in the transmission of TV programs, the engineers employed by the Commission are required to be licensed by the federal government, but the engineers employed by the University are not. The Commission engineers work in an area separate from the University engineering personnel. The Commission engineers work somewhat different schedules and traditionally work more overtime than the University engineers. On the other hand, the University engineers are employed exclusively in production capacities, and are not involved in the transmission or dissemination of programs, which is the reason they needn't be licensed.

The University engineers working at the 33rd & Holdrege site perform essentially the same function as all other University television engineers, including the engineers working for the UNO TV Department. The University engineers apparently work more constant hours than those worked by the Commission engineers, and the fringe benefit programs for the University engineers are different from those of the Commission engineering employees.

The production bargaining unit proposed by the Petitioner (Case No. 133) also includes only employees located at the 33rd & Holdrege facility. These employees are employed exclusively by the University of Nebraska, and they work with the University engineers, and not the Commission engineers, in the production of television programs. They are not involved in the transmission of the programs. The fringe benefit programs for these production people are those developed on a University-wide basis for all "C" line employees and are significantly different from those provided for employees of the Commission.

The three University TV Departments (Nebraska, UMC, and UNO) perform interrelated and integrated functions within the University's system structure. The Commission provides in large part the transmission facilities for the dissemination of extension and public service programming in this state and the University TV Departments provide local production capability. When production is desired by the Commission it is acquired from the University on a contractual basis. Thus, the three television departments for the University of Nebraska act as an integrated production facility which is available to the Commission on a contractual basis for the production of programming.

The Petitioner contends that the employees in the requested units are engaged in a common enterprise (production of TV programs to be transmitted over the Educational Television Network) under the supervision of common management with common wages, hours, and conditions of employment. Petitioner separated the production and engineering units because of local industry practice and because it would be easier to compare job classifications and pay rates.

Though the employees in one of the requested units are not all employees of the University, Petitioner argues, nevertheless, that these employees have a community of interest, perform the same functions, work side by side, have the same duties and skills, and are both necessary and essential to perform the function assigned to them.

The employees involved in the two units organize, direct, produce and distribute TV programs. This completed product involves other employees, such as employees at the UNO and UMC Television facilities and employees at nine different transmission sites. The employees at the UNO facility apparently perform the same function as those at the University of Nebraska at Lincoln facility and they occasionally produce programs which are then distributed to the Lincoln facility for transmission on Channel 12, the public television station. The employees in the various transmission centers transmit the programs produced by the Lincoln facility to various areas of the state of Nebraska.

Respondent argues that the unit requested by Petitioner is too narrow. The appropriate unit, according to Respondent, would be all of the B & C line employees of the University of Nebraska, a unit consisting of approximately 6,000 people.

The question herein is whether either, or both, of the bargaining units proposed by the Petitioner's are appropriate units within the meaning of Chapter 48, Article 8 of the Revised Statutes of the State of Nebraska.

In determining the appropriate bargaining unit in City of Grand Island v. AFSCME , 186 Neb. 711 (1971), the Nebraska Supreme Court used the Federal law criteria of mutuality of interest in wages, hours, and working conditions, duties and skills of the employees, extent of union organization, and desires of the employees.

Respondent contends that the 1974 legislative enactment of LB 1228 specifically rejected these criteria, and limited us to the new language of Section 48-838, R.R.S. (1974), which provides that in determining the appropriate unit for bargaining the court "shall consider established bargaining units and established policies of the employer." The statute, of course, only says that the court "shall consider" established bargaining units and established policies of the employer, and in our opinion, therefore, it does not limit the Court to these two criteria. Thus, we do not agree that LB 1228 rejected the criteria established in City of Grand Island, supra, and consequently, we still consider that mutuality of interest in wages, hours, and working conditions, duties and skills of employees, extent of union organization, and desires of the employees are factors to be considered in determining the appropriate bargaining unit, along with the factors of established bargaining units and established policies of employer.

Respondent also argues that LB 1228 effectuated a clear policy against proliferation of bargaining units in public employment in the State of Nebraska and that the creation of the units proposed by the Petitioner would be violative of the legislative pronounced policy against proliferation of bargaining units in the public sector and would irrevocably interfere with the public interest of assuring the economic continuity of governmental services.

We agree that LB 1228 was precipitated by a desire to avoid fragmented bargaining units.

IBEW v. City of Lincoln , 1 CIR 48-1 (1971), is the decision primarily responsible for the introduction of LB 1228. In that case this Court held that under Nebraska statutes a governmental unit may enter into an exclusive bargaining relationship with a labor organization, but it is not required to deal exclusively if it does not choose to do so. The opinion cites the advantage to the employer as well as to the labor organization of an exclusive bargaining arrangement and this advantage is further illustrated by the following testimony of witness Marti at the legislative committee hearing on LB 1228:

"Right now, the reason certain governmental bodies are supporting this bill is that, as the law now stands, after the decision by the Court of Industrial Relations that in the IBEW case v. Lincoln any little group of employees can have their own agent, their own bargaining agents; and this could mean that in the case of a city or a municipality, 50 of their employees in one department could be represented by one group, 200 could be represented by another group. Theoretically, they would be required to bargain with all three of those representatives..."

In the legislative floor debate, Senator Terry Carpenter explained the object of LB 1228, as follows:

"I don't think this is the real problem in the public employment areas at the present time. In our opinion, the real problem of public employment from the employer's point of view, forgetting about school teachers, is in the area of unit determination and protection from interruption and rating (sic) going to the term of the agreement and that's what this bill in part attempts to do. If you read the bill you will notice that there are substantial safeguards to avoid a situation which could occur in Douglas County which we are concerned about. Whereby the public employer could be dealing with 15 or 20 different bargaining units in one division of the Omaha city government, not one but 15 or 20 different bargaining agents. Whenever you have unions, even if they are public employees unions, you have the danger of strikes. This is unavoidable even though such strikes are illegal. The problem which would result from the Nurses Aides organizing at Douglas County Hospital and trying to shut down the facility are easily seen. If we were dealing with one large unit as opposed to many units the public pressures against this strike would be much more enormous and the crisis period would come only once every three years and opposed every three years. That's what this bill attempts to accomplish. We think the effect of this bill will be to establish in most cities three bargaining units...These units would be the Fire Department, the Police Department, and the remaining employees in the civil division. This certainly is preferable to a situation where every class has its own unit. You may or may not know that the World Herald, for example, deals with some nine different unions with different contracts and expiration dates for each craft, nine of them. You may settle with eight and then you have one out walking past the door and the other eight won't go to work. That's what we are trying to preclude..."

Thus, Senator Carpenter says the object of LB 1228 is "to preclude" the problem created where several unions bargain with the same employer and eight unions reach agreement, but the ninth does not. We don't "preclude" that problem if this Court determines small and fragmented appropriate bargaining units.

Respondent also argues that the public policy provisions of the Court of Industrial Relations law would prohibit the determination by this Court of fragmented bargaining units. Expert witness Weinberg testified that proliferation of bargaining units does not effectuate the state policies underlying our public sector law, but instead causes "invidious comparison", a designation given to the practice of whipsaw bargaining tactics where several unions bargain with the same employer and thus compete with each other, at least in the view of their respective memberships, for the best collective agreement. The business agent who secures the least attractive settlement may be voted out of office. Under this circumstance, the last union to agree ordinarily receives the best settlement and consequently, no one wants to settle first. And the union that settles first for the least will need to make up the difference at the next bargaining session. Sometimes the practicalities of this situation force the employer to unilaterally increase all unions to the highest settlement. We are convinced, therefore, that multi-union bargaining creates labor unrest and dissatisfaction and produces significantly higher collective agreement settlements that would result from a one union-one employer bargaining relationship. [2]

The public policy provisions of the Court of Industrial Relations Act (Section 48-802) require this Court 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 consistent with the preservation of the rights of public sector employees to engage in collective bargaining.

The units requested herein are two groups of employees, engineering employees in one group and production employees in the other, all located at the same site. Two different and separate employers are involved with the engineering unit and there are significant differences in the duties and conditions of the engineering employees of the different employers. [3] Also, the engineering unit does not include other engineering employees who have similar duties and conditions but work at different sites. [4]

The production unit has only a single employer, but the employees in the suggested unit are closely integrated and interrelated with the production employees in the University of Nebraska TV Department at UNO and UNC, who are not included in the unit.

The process of production and dissemination of TV programs by the University involves employees of two different employers; [5] involves employees of the University at the facilities in Omaha and at Mead, as well as in Lincoln; and involves employees of the Commission at the transmission sites throughout the state, as well as in Lincoln.

We conclude that the limited units requested by Petitioner herein are not appropriate. We base our decision on the public policy against fragmented units, the object and purpose of LB1228 to avoid fragmented units, application of the specific statutory criteria of Section 48-838, and application of the criteria established by the Nebraska Supreme Court in the City of Grand Island case, supra.

The petitions are dismissed.

Filed November 25, 1975.

Wall, P.J. and DeBacker, J., concur in the result.

1Alliance (Channel 13), Bassett (Channel 7), Merriman (Channel 12), Sutherland (Channel 9), Lexington (Channel 3), Giltner (Channel 29), Omaha (Channel 29), Norfolk (Channel 19), and Mead (Channel 12).

2Though the doctrine of "invidious comparison" is likely less invidious where public sector labor organizations are prohibited from strike activity, we feel that it would nevertheless apply.

3Commission engineers are licensed, University engineers are not; Commission engineers work different schedules and more overtime than University engineers; Commission engineers deal with transmission of programs, while University engineers do not; Commission engineers work in separate areas from University engineers; Commission engineers have different fringe benefit programs than University engineers; and the University production TV employees work with the University engineers, but not with the Commission engineers.

4Commission engineers working at the satellite transmission facilities, and University engineers working at the Mead transmitter facility, the UNO TV facility, and the UMC TV facility.

5The NLRB follows a policy that a single-employer unit is presumptively appropriate, and that there must be a history of multi-employer bargaining in order to determine a multi-employer unit. Cab Operating Corp. , 153 NLRB (No. 100), John Brenner Co. , 129 NLRB (No. 49).