3 CIR 33 (1975). Reversed and Remanded with directions. 196 Neb. 89, 241 N.W.2d 523 (1976).


Plaintiff, |
Defendant. |

Before: Wall, P.J.,; Kratz & DeBacker, J.J.

Appearances: For Plaintiff, Ross & O'Connor and

Robert E. O'Connor, Jr.

For Defendant, Nelson, Harding, Marchetti,

Leonard & Tate

Wm. L. Harding and Kelvin C. Berens;

Michael G. Heavican, Deputy

County Attorney


This matter comes on for determination of an industrial dispute concerning recognition of A.F.S.C.M.E. as the exclusive bargaining agent for certain personnel in the Division of Public Welfare of Lancaster County, should the A.F.S.C.M.E. win the representation election it has requested. The parties have agreed that those professional employees who are to be excluded from the bargaining unit, as hereinafter discussed, do not desire or need a separate bargaining unit at this time. The court has previously granted plaintiff leave to amend the caption of the case to correctly refer to the defendant in its legal capacity as the County of Lancaster, Division of Public Welfare. The defendant has entered its appearance in such designation and capacity. The parties have conscientiously and wholeheartedly carried out the court's pretrial directives to meet, confer, and limit the issues, and have presented comprehensive stipulations greatly simplifying the case, its presentation and the court's determination.

The Clerk has previously found that the plaintiff's request for an election is duly supported by the statutory percentage of employees. We confirm that finding within the bargaining unit hereinafter found appropriate. We likewise find that we have jurisdiction of the parties and of the subject matter of the action.

The only issue left to the Court for decision by the parties' comprehensive and well-drafted stipulations is the issue of whether the State of Nebraska is a joint employer with the County of Lancaster of the employees in the Social Welfare Division of the County. The evidence is overwhelming, both documentary and oral, that the state interferes in all the minutiae of the operations of the Division, and prescribes exact and exacting standards which must be met under penalty of non-reimbursement for the funds erroneously expended. The state even goes so far as to keep one person on the premises at all times to maintain surveillance on the processing of welfare applications. Big Brother in this system thus comes in person, rather than through a two-way TV screen.

We find, however, that under the historical development of county government in the United States, and in Nebraska in particular, that this manipulation of the tiniest detail of the county's handling of the program by the state is irrelevant to the determination of joint employers or of a proper bargaining unit. Traditionally, counties have been local units of the state government, organized to carry out state programs within a defined geographical area and at the state's direction. They have no inherent powers, such as municipalities occasionally have. They are wholly creations of the state. Frank v. Butler County , 127 Neb. 852, 257 N.W. 235 (1934), Speer v. Kratzenstein , 143 Neb. 300, 12 N.W. 2d 360 (1943), State ex rel. Johnson v. Gage Co. , 154 Neb. 822, 49 N.W.2d 672 (1951), Omaha Parking Authority v. City of Omaha , 163 Neb. 97, 77 N.W.2d 862 (1956), Shanahan v. Johnson , 170 Neb. 399, 102 N.W.2d 858 (1960). The State is free to control and dispose of county monies. City of Fremont v. Dodge County , 130 Neb. 856, 266 N.W. 711 (1936). The state here is thus exercising no more control than it has traditionally exercised in the operation of its county governments, and we can find no basis to extend the employer relationship for organizational purposes, beyond the county level. We, likewise, find no basis for extending the proper bargaining unit outside the Division.

The parties, in an effort to be helpful, have provided the court with innumerable N.L.R.B. citations. In this particular circumstance we find the situation in private industry and in government to be inapposite. The Supreme Court has noted that N.L.R.B. precedent may be helpful in administering the public employee bargaining statutes of the State of Nebraska. [1] We point out that this note was limited to instances where there was no Nebraska precedent. We now add also that the notation was made at a time when there was no great experience under Executive Order 11491, as amended, and the regulations and decisions issued and made thereunder, all of which may in the future furnish us with helpful guidance in the public employee area.

We, therefore, find that the County of Lancaster, Division of Public Welfare, is the sole employer concerned herein, and that the following constitutes an appropriate bargaining unit within the meaning of the statute:

All full-time and regular part-time employees of the County of Lancaster, Nebraska, Division of Public Welfare excluding the following job classifications: County Director II, Assistant Administrator, Business Manager, Chief Attorney, Legal Consultant, Supportive Services Unit Manager, Training Officer, County WIN Director, Administrative Assistant, Administrator for Social Services, Homemaker Supervisor, Administrator for Income Maintenance, Manager of Buildings and Security, Social Worker II, Income Maintenance Supervisor, Social Services Supervisor, Legal Investigator, Legal Secretary I, and Legal Secretary II, and also excluding the following individuals: Fay Shalla, Darla Weisback, Maryan Casjens, Carol Christopher, Georgia Skinner, Lila Swanda, Sonja Dvorak, and Helen Wrann.

IT IS, THEREFORE, ORDERED that a secret ballot election be conducted within a reasonable period from the date of this Opinion within the unit above described.

IT IS FURTHER ORDERED that the court's representative in the conduct of such election shall be Judge Benjamin M. Wall and that the election shall be under the immediate supervision of the Clerk of the Court, Janet Stewart Arnold.

IT IS FURTHER ORDERED that counsel for the parties shall meet with the Court's representative on or before July 22, 1975, to determine an appropriate date, time and place for the election, as well as the form and place of notice, and the form of ballot, together with such other procedural matters concerning the election as shall be appropriate.

Filed July 17, 1975.

[1] City of Grand Island v. A.F.S.C.M.E. , 186 Neb. 711 185 N.W. 2d 860, 863 (1971).