3 CIR 302 (1977).



A Corporation, |
Plaintiff, |
Defendant |

Filed November 4, 1977.

The plaintiff, Nebraska Association of Public Employees, (hereinafter referred to as NAPE), has filed a representation petition seeking to represent certain employees of the Community Mental Health Center of Lancaster County. At the time of the filing of the original petition, the Mental Health Center was under the control of the Nebraska Department of Public Institutions. Pursuant to Section 70-5011, R. S. SUPP. 1976, this facility was to be transferred to the control of Lancaster County on or before April 16, 1976.

On September 13, 1976, the plaintiff filed an amended petition which joined both Lancaster County and the American Federation of State, County and Municipal Employees, (hereinafter referred to as AFSCME), as defendants. Prior to the hearing on May 6, 1977, the original defendant, Nebraska Department of Public Institutions, was dismissed from the proceedings pursuant to its Motion to Dismiss, filed December 7, 1977.

AFSCME did not file an answer to the amended petition, but did join in a written stipulation that was received into evidence. AFSCME did appear briefly at the hearing, through counsel, but offered no evidence. The Court, accordingly, has no information on AFSCME'S position relative to the representation of the employees in question.

The central issue presented is whether the bargaining unit claimed by NAPE is an appropriate unit. The unit sought by NAPE includes professional, technical and clerical employees employed exclusively by the Community Mental Health Center. The defendant alleges that this unit is inappropriate for the following reasons: 1) the employees in question should be included within a preexisting unit of county employees represented by AFSCM#E; 2) the NAPE unit contains supervisory and confidential employees who should be excluded; and 3) the unit contains both professional employees within the same unit.

Before discussing the issues listed above, a remaining issue raised by the defendant should be determined. The County has alleged as a defense that certain employee compensation items are governed by the Civil Service statutes of Lancaster County, Section 23-2517, et seq., R. R. S. (Reissue, 1974), and therefore are not bargainable. The Court should find that the raising of this issue in a representation case is premature. Furthermore, the same issue has been previously decided by the Court in Case 164, AFSCME v. County of Lancaster, now on appeal before the Supreme Court, and therefore need not be discussed further herein.

Turning to the first issue set forth above, the evidence revealed that prior to the filing of the original representation petition by NAPE, and prior to the transfer of control of the Community Mental Health Center to the County, the defendant had to voluntarily recognize AFSCME (pursuant to an election agreement) as the exclusive bargaining agent for a unit of county employees. This unit consisted of certain classified service employees in the various county divisions. Not all classified service em#ployees of the county were included in this unit. Some were excluded as confidential employees. The record is not clear as to exactly what other exclusions were made, if any, however, there is no question that some of the job classifications within the NAPE proposed unit appear in similar form within the preexisting AFSCME unit. These are predominantly clerical positions. The voluntary recognition agreement between AFSCME and the County is silent on the possible future addition of any employees of after-acquired operations into the AFSCME countywide unit.

The criteria for determining appropriate bargaining units were discussed in American Assoc. of University Professors v. Board of Regents, 198 Neb. 244 (1977). Relevant factors include: "prior bargaining history; centralization of management, particularly in regard to labor relations; extent of employee interchange; degree of interdependence or autonomy of the (facilities); differences or similarities in skills or functions of the employees; geographical location of the facilities in relation to each other; . . . " .[1] The Supreme Court also discussed the possibility of over fragmentation of bargaining units as a factor. The desires of the employees involved are also considered in unit determination.[2]

The evidence revealed that there exists a considerable degree of centralized management. The Mental Health Center employees are covered by the same Civil Service statutes as the employees within the AFSCME unit. The overall labor policy for employees under the merit system is determined by the County Board of Commissioners. The authority of the County Board extends to the promulgation and adoption of personnel rules and the establishment of pay and other items of compensation. The Mental Health Center has certain autonomy over personal matters within the constraints of the personnel rules.

The facilities of the Mental Health Center are separate and distinct from those of other county departments, however, other county agencies are also located in various places throughout the Lincoln area. While the Mental Health Center has consultive and service relationships with other county departments, as well as ties with the county administrative framework, there is no great degree of interchange between the Mental Health Center employees and those of other county departments.

While the testimony revealed that NAPE had taken a large part in obtaining certain pay and fringe benefit carryovers at the time of transfer from State control, this was not a collective bargaining relationship as such. NAPE had been contacted by Mental Health Center employees prior to the transfer who were concerned about the effect of the changeover on certain economic items. NAPE representatives met with groups of employees and State and County officials, thereafter, and a solution was arrived at through the passage of LB 794 in 1976. Section 75- 5001 et seq., (R. R. SUPP. 1976). This statute provided for the payment of certain fringe benefits, retirement, sick leave and vacations, over and above what the employees would qualify for under the county system for a period of five years. The County did not, however, recognize NAPE as the exclusive collective bargaining agent for the employees involved, and, indeed the process was in reality a joint lobbying effort. The statutes cited above make no provision for beyond the five year period.

NAPE took the position at trial that because the Mental Health Center employees had benefits in excess of those of the county employees in the AFSCME unit, conflicts would develop if one bargaining agent were to represent the two employee groups. There is some validity to this argument as under the previous Lancaster County decision, the continuation of the increased benefits would be a bargainable item.

The remaining factors which should be considered here are the differences or similarities in skills or functions of the employees, and possibility of over fragmentation, which are crucial to the determination of the instant case. It was revealed at trial that the Mental Health Center employees were at that time still working under the State's job classifications for their positions over a year from the date of transfer. As discussed earlier, there did exist comparable job descriptions for the clerical positions and some technicals under the existing classification system. However, regarding the professional and remaining technicals, there were no comparable classifications. This points to distinct skills and functions.

In this case, the only evidence on the desires of the different classes of employees for inclusion within a single bargaining unit was the testimony of individual employees of each type (professional, technical, and clerical) on their desires for inclusion, and additionally, on their conversation and contacts with similarly situated employees on this topic. The Court should not rely on this testimony as a basis for ascertaining the desires of the employees. The probative value of the testimony of one professional, technical or clerical worker on his/her desire is not a sufficient basis for a finding concerning an entire class of employees. The testimony of the conversations with other employees are examples of the worst kind of hearsay and should not be relied on for that reason. In cases where more than one appropriate unit might exist, and where the desires of the employees might be a determinative factor, the Court could conduct a "Globe" election patterned after the NLRB practice [3] to first ascertain the desires of the various classes of employees on inclusion within a single unit. In this manner the Court could have a valid indication of the desires of the employees involved.

Considering the above factors against the need to prevent the over-fragmentation of bargaining units, the Court should find that the clerical workers appropriately belong within the country-wide unit of other classified service employees. Based on the similarities in job descriptions and skills, these employees have a community of interest with employees in other county agencies. Because these employees are now receiving additional benefits under LB 794, they should not be automatically included within the AFSCME unit. The Court should order an election for this group of employees in which they may either choose to be included within the broader unit, or alternatively, elect for no representation. This approach avoids duplication in bargaining and problems in transferability of employees against which the county argued.

Because of their distinct skills and function, a community of interest should be found among the professional and technical employees, in light of the geographic separation and operational autonomy of that facility, as well as the benefits accruing under LB 794 and the employee interest in preserving them in the future. The inclusion of professionals in a unit containing non-professional employees can be justified under the circumstances of this case. The testimony revealed that the facility contained some team concept organization, whereby different classes of employees work closely together on a common problem or patient. The professional employees are spread throughout the entire agency, and work closely with the non-professionals. While most of the technicians are assigned to the partial hospitalization program, there are technical employees assigned to other programs as well.

Section 9(b)(1) of the National Labor Relations Act forbids the NLRB to include in a unit both professional and non-professional employees unless a majority of the professional employees vote for inclusion. The Nebraska Court of Industrial Relations Act contains no such provision. The intent behind this NLRB provision was to prevent the distinct interests of the professionals from being submerged within a larger unit. See Gorman, Labor Law . This policy appears equally applicable to the public sector, however, without an express statutory provision there is no necessity to follow the federal precedents such as Leedom v. Kyne , 358 U. S. 184 (1958), in holding that a self-determination election is required in cases where the professionals comprise the majority of employees within the unit which is true in the instant case. The interest of the professional employees may be adequately protected by voting in an election for the bargaining agent, particularly in this case where no competing labor organization has sought to represent the employees in question.

The defendant has alleged that the following job classifications are supervisory and should therefore be excluded from the bargaining unit: Executive Director, Administrative Services Officer, Program Director, Administrative Services Officer, Program Evaluation Specialist, Outpatient Director,Community Living Service Director, Volunteer Service Coordinator, Consultation and Education Service Director, Administrative Aide. The Plaintiff has conceded that the positions of Executive Director, Outpatient Director, Community Living Service Director, and Consultation and Education Service Director are supervisory and should be excluded from the unit. Additionally, the plaintiff agrees that the Administrative Services Officer and the Administrative Aide should also be excluded from the unit, but for the reason that the positions are confidential not supervisory. These six positions should be excluded from the unit accordingly, and there is no necessity to determine whether the Administrative Services Officer, and the Administrative Aide are supervisory or confidential for the purposes of this case as they would be excluded from the bargaining unit under either designation.

The remaining two classifications which are at issue on the question of supervisory capacity are the Program Evaluation Specialist, and the Volunteer Service Coordinator. The testimony revealed that each of these individuals had one worker under their direction. Both are program directors and participated in a weekly directors' committee meeting where personnel and labor related matter were sometime discussed. The record is silent as to specifically what personnel and "labor related" matters were discussed at these meetings, although there was testimony that NAPE and its desire to represent the Mental Health Center employees were discussed. It is not necessary to base a finding of supervisory status on the participation in this meeting, however, as other sufficient basis appear in the record. Each of these individuals had the responsibility to select for hiring the employees who worked under them. While only the Executive Director could transfer or layoff employees, the program directors could effectively recommend firing, and recall of employees under their direction. The evidence was that the Program Evaluation Specialist and Volunteer Service Coordinator each had the responsibility to discipline the other employee in their program, and as the immediate supervisors were the first step in the grievance procedure under the County personnel rules. Supervisory status under Nebraska law is determined by the definition of supervisory in the National Labor Relations Act, and the employee in question need have only one or more of the types of authority specified in this definition in order to be classified as a supervisor, CWA v. City of Hastings , 2 CIR 99-1 (1975). The types of authority referred to in the federal law are to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline, or responsibility direct them, or to adjust their grievances, or effectively to recommend such action, if the exercise of such authority is not of a merely routine or clerical nature, but requires independent judgment. Section 2(11) National Labor Relations act, See, City of Grand Island v. AFSCME , 186 Neb. 711 (1971). The above two classifications fit within the definition of supervisor which the Court has followed in its past decisions and should, therefore, be excluded from the bargaining unit.

The remaining issue for determination concerns the defendant's allegation that one employee should be excluded from the bargaining unit as a confidential employee. The plaintiff argues that this individual is not a confidential employee and must be included within the unit. The employee in question has the job classification of accounting Clerk II. The job classification contains nothing to indicate a confidential nature to the position. The testimony at trial was that this individual was the secretary to the Administrative Services Officer who keeps the personnel records for the agency, and that she had access to the personnel files. The Administrative Service Officer testified that she would type his correspondence, assist in typing unspecified "labor related matters"; she would make no decisions concerning personnel matters, but she "assists" him. The test for determining the confidential status of employees is whether the individual assists and acts in a confidential capacity to a person who formulates, determines, and effectuates management labor relations policies. B.F. Goodrich Co., 115 NLRB 722 (1956). Access to personnel files, and similar materials alone is not a sufficient basis for exclusion of an employee from a bargaining unit.

Unless an employee's job description is such as to demonstrate the confidentiality of the position, evidence is required to demonstrate that the position is outside the ordinary right of an employee to be represented. In this case the record does not reveal whether the Administrative Services Officer actually formulates, determines and effectuates labor relations policies, or how the employee in question "assists" him exactly or that she acts in a confidential capacity. Since confidential status is a factual question, and there is not sufficient evidence in the record to base a finding, the Court should decline to exclude this employee from the unit. See, Empire Mutual Insurance Co., 195 NLRB 284 (1972).

It is therefore recommended that the Court Order:

1. That an election be held among all professional and technical employees of the Community Mental Health Center, excluding any of the following job classifications which may fall within the above categories: Executive Director, Administrative Services Officer, Program Evaluation Specialist, Outpatient Director, Community Living Service Director, Volunteer Service Coordinator, Consultation and Education Service Director, and Administrative Aide; to determine whether these employees wish to be represented by the Nebraska Association of Public Employees for the purpose of collective bargaining.

2. That an election be held among all clerical employees of the Community Mental Health Center, excluding any of the job classifications listed in (Section 1 above) which may fall within this category, to determine whether these employees wish to be included in the presently existing country-wide unit represented by the American Federation of State, County and Municipal Employees, or whether they desire no representation.