3 CIR 318 (1977)




Filed October 11, 1977.


Robert G. Scoville for Plaintiff

Wayne E. Boyd for Defendant

Before: Wall, P. J., Kratz and Green, J. J.


This is a representation case in which a group of municipal employees of the City of South Sioux City, who are currently part of a bargaining unit, seek severance from that unit and independent representation. The current unit encompasses all nonuniform city employees and is represented by the American Federation of State, County and Municipal Employees. The employees seeking severance are employees of the Municipal Electrical Department. This Department has 6 employees, 1 supervisor, and 5 nonsupervisory employees. The employees of the Electrical Department are engaged both in the maintenance of the existing lines of the City's electrical system and in the construction of new lines for that system. Their work involves skills at least analogous to those possessed by workers who are traditionally required as having the skilled craft of an electrician.

In essence the plaintiff's claim is that electricians would be better represented in a unit of their own because the skills which they possess differ from the skills of other members of the bargaining unit, and the attempt of the current representative to speak for a heterogeneous unit has resulted in inadequate attention to the special problems of electricians. There is a certain validity in this claim. Nevertheless, a bargaining representative has an obligation to fairly represent all members of a unit without discrimination. See, Ford Motor Co. v. Huffman , 345 U. S. 330 (1953). If the interests of the members of a unit were so diverse that performance of this obligation was a practical impossibility, such a variegated unit might well be improper. However, here, we do not believe that the divergence between the electricians and the other members of the unit is so great that a single representative cannot give fair attention to the interests of all. Moreover, while the witnesses for the plaintiff had some complaint about the representation they had received, none of it rose to the dignity of a breach of the duty of fair representation.

In City of Grand Island v. American Federation of State, County and Municipal Employees, 186 Neb. 711, 185 N. W. 2d 860,863 (1971), the Supreme Court approved our practice of looking to the traditional standards developed by the N.L.R.B. in determining appropriate units. Under these standards "the Board in making its unit determinations seeks an employee group which is united by community of interest , and which neither embraces employees having a substantial conflict of economic interest nor omits employees sharing a unity of economic interest with other employees in the election or bargaining constituency." Gorman, Labor Law , page 69. As Professor Gorman goes on to point out, however, "it can easily be seen that community of interest is a vague standard which does not readily lend itself to mechanical application. It is a multifactor criterion, and it is rare in any given case that all of the factors point conveniently in the direction of the same size unit." Gorman, op. cit., page 69.

The community of interest approach, then, is essentially a balancing approach. The balance which must be struck, on the employee side, is between the contribution made by a larger unit to the bargaining strength of that unit as against the special interest of some subsidiary group within the proposed larger unit in separate representation. In this case, we do not have severe difficulty in striking the balance. The difficulties with large units from the employee point of view are twofold. Firstly, "the more diversified the constituency, the more likely there will be conflicts of interest and strains upon the union's ability to represent all unit employees fairly in negotiating and administering the collective bargaining agreement." Gorman, op. cit., page 67. We have already dealt with this difficulty. We do not believe that the unit in which the electricians are currently represented is so diverse that conflict of interest is a major problem. The second difficulty is that "the larger the unit, the more diluted the impact of any single employee on the shaping of union policy." Gorman, op. cit., page 68. Currently, there are between 30 and 35 members of the unit. This unit is small enough that each electrician or the 5 electricians as a group could substantially impact the performance of their bargaining representative.

Larger units are generally more advantageous to an employer. "Fragmented units tend to bring economic headaches to the employer.... They also involve greater cost and disruption that come with frequent bargaining cycles and meetings; . . . " Gorman, op. cit., page 68. In Wellington and Winter, The Unions And The Cities, page 108, the authors note:

"The final Primary criterion is the goal of avoiding excessive proliferation of bargaining units; this entails keeping three things in mind. First unnecessary bargaining costs - increased bureaucracy, diversion of time and so forth, ought not to be imposed on public employers. The more units there are, the larger the costs are likely to be. Second, units must be fashioned with a view to creating or maintaining a rational and comprehensive wage structure within govemment .... Third, competition between unions in different units ought, where possible to be avoided. . . ."

In the usual case, employee interests in a smaller unit must be balanced against the employer's interest in a larger, nonfragmented unit. In other words, a balance needs to be struck between these interests to the end that employees are placed within units with "a community of interest . . . among the employees which is sufficiently strong to warrant their inclusion in a single unit." American Association of University Professors v. Board of Regents, 198 Neb. 243, 253 N. W. 2d 1, 11 (1977). At the same time, "it is clearly the intent of the Legislature and the policy of this Court that fragmentation of bargaining units within the public sector is to be avoided." Home Officers Association for the University of Nebraska Medical Center v. The University of Nebraska Medical Center, 198 Neb. 697, 255 N. W. 2d 258, 263 (1977). The balancing of these two interests into the design of appropriate units requires that "a balance ... be struck ... between units so small that the employee representative will not have access to personnel with authority to determine substantial matters affecting employment, and units so large that particularized local or individual issues cannot be easily resolved." Wellington and Winters, op. cit., page 107.

In a case such as this, where the unit currently in existence is small, where there is a history of representation of the whole unit with reasonable success, see, Section 48-838(2), Neb. R. R. S. American Association of University Professors v. Board of Regents, supra, 253 N. W. 2d 9-10, and where the individual employees, who seek severance, could have a substantial impact upon the bargaining representative by participating in its affairs, we believe that the arguments against proliferation of units predominate. Here, there is no substantial employee interest to be balanced against the employer's opposition to fragmentation. Therefore, the employer's interests carries the day. The petition of plaintiff is dismissed.