3 CIR 350 (1977). Reversed and remanded with directions. 202 Neb. 391, 275 N.W.2d 816 (1979).


Plaintiff, |
Defendant. |

Filed November 1, 1977.


For the Plaintiff:John R. Baylor of Baylor,

Evnen, Baylor, Curtiss & Grimit

For the Defendant:James J. DeMars and Robert A. Barlow

of Barlow, Johnson, DeMars & Flodman

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


This industrial dispute brings before us the attempt to organize the Sheldon Power Generating Plant of the Nebraska Public Power District. We find that we have jurisdiction of the parties and of the subject matter of the controversy.

The Clerk's determination that the petitioner is entitled to an election under § 48-804.1, R. S. Supp. 1976 has become final and the soIe question before us is the tailoring of an appropriate unit, which upon our designation will become the appropriate unit under § 48-838, R. R. S. 1943. AAUP v. Board of Regents, 3 CIR Adv. 71, 3 CIR 150-1 (1975), aff'd . 198 Neb. 243, 253 N. W. 2d 1 (1977).

The plaintiff is a union comprising a number of nonsupervisory employees at the defendant's Sheldon Station generating plant at Hallam, Nebraska. The defendant is a vertically integrated public power system, having generating, transmission and distribution facilities for sales at wholesale and retail'. It is internally interlocked, as well as being interlocked with the Bureau of Reclamation generation and transmission system and the entire eastern grid of power generation and transmission systems extending to Maine on the Northeast and to Florida on the Southeast.

The defendant operates seven generating facilities, three coal-fired, one nuclear - which it shares with Iowa Power and Light - and three others. The Sheldon plant is a remodeled, nuclear plant left over from an AEC atomic energy experiment. It presently burns low-sulphur Wyoming coal, though the furnaces installed during the changeover from nuclear to fossil fuel were intended for a different type of coal.

It is settled law that in tailoring the appropriate unit, we consider the mutuality of interest in wages, hours and working conditions (community of interest), duties and skills of employees, extent of union organization among employees, desires of the employees, the policy against fragmentation of units, the established policies of the employer, and the statutory mandate to assure proper functioning and operation of governmental service. AFSCME v. County of Douglas, 3 CIR 184/188-1 (1977). The choice is essentially a balancing of policies and interests, South Sioux City Mun. Elec. Assn. v. South Sioux City, 3 CIR 175-1 (1977) and requires the exercise of that informed legislative judgment or expertise uniquely possessed by a tribunal created by the Constitution and the Legislature to deal with public collective bargaining issues.

The prior bargaining history, of the NPPD is one of management-organized-and-encouraged employee organizations at each generating plant. No system-wide employee committee exists.

Centralization of management and labor policy. Management has set up the separate organizations of employees at each plant, as noted. Personnel actions are generally initiated at the local level, but are forwarded to Columbus for final approval by management and the Board of Directors.

Extent of interchange of employees. Management is proud of the quality of its staff, and as new plants (Cooper and Gentleman) have been constructed, has attempted to fill vacancies by transfer of employees from existing plants. Defendant proffered testimony that 26.9% of transfers (including promotions) are from plant to plant. Plaintiff offered Exhibit 239 A (a summarization of Ex. 239), showing that of 1,221 NPPD promotions or title changes in the 45-month period ending September 16, 1977, Nine Hundred Eight-seven, or 80.8%, were in the individual's same area or group; that of the 1,221, Two Hundred Ninety-eight promotions or title changes were associated with a power generating facility, of which Two Hundred Eighteen, or 73.1% were internal or within the same plant. Evidence of both parties is thus generally in accord that, except for transfers to new plants, permament promotions and transfers are largely intemal to a given station. Temporary assignments to other plants and other testimony leads us to a second conclusion that while precise duties at each plant for a given job description may vary, that the duties are sufficiently similar that an employee in a given description could function satisfactorily in the same job description at another plant with a minimum of training. Jobs appear to be comparable for 818 wage determination purposes.

Interdependence and autonomy. The plants are clearly interdependent on the functional level, since power generated cannot be stored, and the production of each station must be carefully balanced against the load within the system, and the loads of all the systems to which NPPD is interlocked. The stations have a certain amount of autonomy in the personnel field, however, as reflected by the previously mentioned initiation of personnel changes by local superintendents or managers, and the interviewing and initial recommendation of employees by local managers.

Similarity of skills. We have discussed the similarity of skills above. Differences arise from the fact that the Cooper Station is nuclear and often has higher compensation levels for the same job title; the Gentleman Station is still under construction, making maintenance a preventive task; and Sheldon is a converted plant which is more difficult and, in the coal yard, more hazardous to operate.

Geographical location. The plants and transmission and distribution facilities are scattered across the State of Nebraska, from the eastern to the westem borders, and from South Dakota to Kansas. Interlocks with other systems are, likewise, scattered across the state.

Uniformity of wages, benefits and working conditions. The District has attempted to equalize wages and benefits by setting up a district-wide compensation plan. The plaintiff employees do not perceive the plan as uniform however, and feel that their skills have not been given adequate values in assigning compensation levels. Working conditions vary because of the differences in the type and age of the plants.

Current governance of the district. The district has ostensibly set up a highly centralized management. However, it is clear from the evidence that day-to-day decisions on personnel matters are left largely to the local managers.

Established policies of the employer. The District, after demand for recognition by the plaintiff, announced that it felt only a district-wide bargaining unit was appropriate. We have previously noted its establishment of local committees, however.

Fragmentation. Witnesses for the District emphasized the danger of fragmentation of whipsaw bargaining. However, as pointed out in the majority opinion in IBEW v. Board of Regents, 3 CIR 133/134-1 (1975), this danger is significantly less in the public sector in Nebraska than it is in the private sector. We note here, also, that plaintiff seeks to organize all departments at one location, rather than only one portion of a plant.

Degree of unionization - desires of employees. The only organizational effort currently under way is the one now before this Court. There is no evidence of any other present organizational activity among any of the defendant's employees.

Taking into account all of the factors which we are required to consider as a matter of legislative judgment, we determine the appropriate unit to be:

All hourly-wage, non-management personnel employed by NPPD at the Sheldon Power Station, Hallam, Nebraska.

An election to determine the collective bargaining agent, if any, shall be held as soon as reasonably possible. Judge Benjamin M. Wall is designated as the Court's representative for such election, which shall be held under the immediate supervision of the Clerk of the this Court, Janet Stewart Arnold. Janet Stewart Arnold is appointed Hearing Examiner to determine initially all questions arising during the election process. The parties shall meet with the Clerk at 10:00 O'clock, A.M., on the 9th day of November, 1977, to agree upon or have determined all questions concerning the election not covered by Rule 9.