| NEBRASKA ASSOCIATION OF PUBLIC | | | CASE NO. 201 |
| PUBLIC EMPLOEES, A Corporation, | | | |
| | | ||
| Petitioner, | | | |
| | | ||
| vs. | | | |
| | | ||
| STATE OF NEBRASKA, DEPARTMENT OF | | | OPINION AND ORDER |
| EDUCATION, | | | |
| | | ||
| Respondent. | | |
Appearances:
For Petitioner: Steven D. Burns
For Respondent: John R. Thompson
Before: Judges Debacker, Kratz and McGinley.
DEBACKER, J:
The Nebraska Association of Public Employees (hereinafter referred to as NAPE) has petitioned this Court to determine the appropriate bargaining unit and to direct an election among certain employees of the Nebraska Department of Education.
The unit requested by NAPE consists of essentially all nonsupervisory and nonconfidential employees of the Department of Education, excluding employees of the Nebraska School for the Deaf and the Nebraska School for the Visually Handicapped. The position of the Department of Education is that the employees of these two schools should be also included within the appropriate bargaining unit.
A petition to intervene in the proceeding was filed on behalf of the Nebraska School for the Deaf Education Association and the Nebraska School for the Visually Handicapped Education Association, each seeking to represent a separate unit of teaching staff at the two schools. Prior to trial, the Nebraska School for the Visually Handicapped Education Association was dismissed from the proceedings pursuant to its request to withdraw.
The parties entered into several stipulations one of which provided that should the Court determine that teaching employees should not be included in a unit with nonteaching employees, that the teachers employed at both state schools should be included within one separate bargaining unit.
Pursuant to the stipulation of the parties, there are two issues to be resolved by the Court.
The first concerns whether the Court has jurisdiction over the subject matter and over the person of the Department of Education because of certain constitutional issues raised by the Departmentin its answer.
The second is which of the following bargaining unit combinations is appropriate:
1. A single unit consisting of all employees who are nonsupervisory and nonconfidential in nature?
2. A unit of teachers, and a separate unit for all other employees of the Department who are nonsupervisory and nonconfidential in nature?
3.A unit of teachers, a separate unit of teacher-support staff at the two state schools, and a separate unit for all other nonsupervisory and nonconfidential employees of the Department?
Turning first to the constitutional issues, we find that the
Defendant's arguments based on Article XV, Section 9; Article II,
Section 1; Article IV, Section 1; and Article IV, Section 6, have
been previously decided in our Case No. 128/138,
AFSCME and NAPE
v. Department of Roads
The other constitutional provisions cited by defendant, Article VII, Section 2, 3, and 4, all specifically concern the State Department of Education, State Board of Education and the Commissioner of Education. While defendant argues that these provisions make Chapter 48, Article 8, R.R.S. 1943, unconstitutional as to the Department of Education, we hold that quite the opposite is true. These sections provide specifically that the State Board of Education and Commissioner of Education shall have the powers and duties which the Legislature may direct. That being the case, it appears obvious that the Legislature may direct that the resolution of "industrial disputes" involving Department of Education employees be within the jurisdiction of the Court of Industrial Relations. This situation is similar to that in AFSCME v. Department of Public Institutions , 195 Neb. 253, 237 N. W. 2d 841 (1976), where the Supreme Court upheld our jurisdiction. While in this case the Department of Education is constitutionally specified as the governing body, the powers and duties are to be prescribed by the Legislature. For the above reasons, we reject the Department's constitutional arguments.
The case of NAPE consisted of three organizational flow charts of the Department of Education which illustrated its various employees, including those of the School for the Deaf and the School for the Visually Handicapped, plus several stipulations entered into by the parties prior to trial.
The stipulations related to the "community of interest" among certain groups of the Department's employees. Specifically the parties stipulated that there was a community of interest among employees of the Department of Education not employed at the Schools for the Deaf or the Visually Handicapped who are nonsupervisory and nonconfidential, except for a list of specified job classifications.
The parties also stipulated that a community of interest exists among nonteaching employees of the Schools for the Deaf and Visually Handicapped who are nonsupervisory and nonconfidential, except for a list of specified job classifications. In addition, the parties stipulated that nonteaching employees located at the Department's Cozad Center who are nonsupervisory and nonconfidential have a community of interest, and should the Department change the Cozad facility into a diagnostic and training center (which was its intention), the nonconfidential and nonsupervisory employees located there would have a community of interest and should be within the "proposed" unit.
The Department's position was that a single unit consisting of all of its employees who are nonsupervisory or nonconfidential employees is the most appropriate unit. The Intervenor seeks to have a separate unit of teaching employees only. NAPE appears to be arguing for a unit of all nonsupervisory and nonconfidential employees of the Department, excluding the employees of the two state schools (who should be placed in two separate units), and including the nonsupervisory and nonconfidential employees of the Cozad Center if the Department implements its proposed changes at that facility.
The Court has not been informed as to whether the Department has carried through its plan to alter the function of the Cozad Center. Since this was the expressed intention of the Department and initial steps had been taken toward this purpose at the time of the hearing, the court will presume that the plan was carried on to completion.[2]
Based upon the organizational flow charts, the stipulations of the parties, and the testimony adduced at trial by the intervenor and the Defendant, the Court finds that the combination of a unit of certificated employees who are employed as teachers at the two state schools and, a unit of all other employees of the Department of Education who are nonsupervisory and nonconfidential, is appropriate.
The factors which go into a unit determination have been
discussed thoroughly in previous cases,
City of Grand Island v.
AFSCME
, 1 CIR 24-1 (1970), modified 186 Neb. 711 (1971);
IBEW,
Local No. 1221 v. Board of Regents
, 3 CIR 133/134-1 (1975);
AAUP
v. Board of Regents
There are several factors which indicate that a separate unit for certificated teaching employees is appropriate. The evidence presented by the Intervenor illustrated that the Department had conducted past negotiations with the School for the Deaf Education Association. While the Department does have other certificated employees, they serve mainly as consultants, whose clients are teachers, administrators and principals, and they are not involved in the classroom instruction of children. This presents a far different working situation from classroom teaching, particularly in regard to the frequency of contact and the number of clients or
students" served. While the Schools for the Deaf and Visually Handicapped provide an education to students in a specialized way, they are functionally similar to any other public school teaching situation. The Schools for the Deaf and Visually Handicapped are subject to the same type of accreditation process as the other public schools, and similarly must file reports on such matters as enrollment and staff figures.
The terms and conditions of employment of the teaching employees vary significantly from those of the Department's nonteaching employees. The teachers have individual contracts of employment from 190 to 210 days in length. The Department's other employees basically do not have individual contracts and work 12 months a year. Teaching employees are not eligible for vacation benefits as they work only nine months a year.
While it is true that many of the Department's policies and regulations over teaching and nonteaching employees alike[3], there is one factor which points convincingly to the conclusion that the teachers should be in a separate unit. Trial Exhibit 5, which is a copy of the April 1976 negotiations proposals for the Nebraska School for the Deaf Education Association, illustrates the Association's desire to negotiate a separate salary schedule from that of the nonteaching employees which would be based not only on years of service, but professional growth through advanced educational attainment. This has been a traditional concern of classroom teachers and is a significant difference from the concerns of employees not directly involved in the teaching of students.
The evidence revealed that although the administrators of the Schools for the Deaf and Visually Handicapped had regular contact with the Department, there was no direct supervision of the teaching staff by personnel in the Department's Lincoln office. In addition, separate budgets are already prepared for the schools which indicates that the establishment of two units will not create undue administrative burden on the Department.[4]
The facts of the instant case are distinguishable from the factual setting involved in the Department of Roads decision. The Supreme Court determined that our creation of two separate bargaining units in that Department was erroneous.[5] Here we are dealing with a professional group seeking separate representation not only to reflect existing differences in employment conditions, but to permit them to pursue professional concerns not shared with the Department's other employees. This group has a separate community of interest. The Supreme Court approved the separation of professional units in AAUP v. Board of Regents , 198 Neb. 244 (1977); and we feel the application of the same principles are warranted under the facts of this case, and we find that the presumption against units of less than departmental size, contained in SS 48-838 R. R. S. 1943, has been rebutted.
While not all the support staff at the two schools work twelve months a year, they have a sufficient community of interest with the Department's other nonteaching staff to be included within the same unit.
There are some job classifications which are found only at the two schools and the Cozad Center such as Food Service Worker, Laundry Worker, Custodian, House Parent, Cook, etc. While their duties may differ from the Department's other nonteaching staff, they are covered by the same basic terms and conditions of employment. The school support staff do not share the same professional growth concerns as the teachers. The parties have already stipulated that the Cozad support staff should be appropriately included within the main unit.
For the above reasons coupled with the need to prevent the over-fragmentation of bargaining units' the Court finds that the inclusion of the school support staff within a single unit of nonteaching personnel is appropriate.
The units as established are described as follows:
All nonteaching employees of the Nebraska Department of Education, excluding supervisory and confidential employees and the following job classifications:
Administrative Secretary; Administrator I - Budget and Fiscal; Administrator I - Deputy Director Rehabilitation Services; Administrator I - Disability Determination Section - Lincoln; Administrator I - ESEA Title III and IV;
Administrator I - Program Administrator Vocational Education; Administrator I - Special Education; Administrator II - Assistant Commissioner, Instructional Services; Administrator II - Finance; Administrator I - School Finance and Accounting; Administrator I - Instructional Services; Assistant Commissioner - Instructional Services; Assistant Commissioner Education - Rehabilitation Services; Assistant Commissioner Education - Vocational Education; Administrator I - School for the Deaf; Administrator I - School for the Visusally Handicapped; Budget Technician - Deputy Commissioner; Budget Technician - Divisions II, Ill, and IV; Business Manager - I School for the Deaf; Commissioner of Education; Controller; Coordinator, Personnel Adjustment Training; Deputy Commissioner; Director I - Deputy Director Rehabilitation
Services; Director I - Personnel; Director I - Regional Director - Region I and II; Director I - Regional Director - Region III; Director I - Regional Director - Region IV; Director I - Regional Director - Region VI; Director II - Planning and Evaluation; Director II - Regional Director - Region V; Director II - Federal Grants; Director I - School Lunches; Director I - Special Education, Federal; Director I - Special Education, State; Director I - School for the Deaf; Director of Education and Director of Resource Center - School for the Visually Handicapped; Director II - ESEA Title I; Director I - Field Services; Director II
- Management and Evaluation; Director II - Pubil Personnel Services; Director II - Agriculture; Director I - Disability Determination Unit; Executive Assistant to Commission;
Legal Counsel; Legal Counsel II; Management Consultant No. 134 Personnel Clerk II; Personnel Officer I; Principal - School for the Deaf; Secretary I - Legal Assistant; Secretary II - Assistant Commissioner Education - Rehabilitation Services; Secretary II - Deputy Commissioner; Supervisor II - Beatrice State Home; Supervisor II - Disability Determinations Unit; Supervisor I - Region I - General Services Office; Supervisor I - Region II; Supervisor II - Region IV, Regional Center; Supervisor II - Region V - Regional Office; Supervisor II -Region V - Lincoln District Office; Supervisor I - Region V - Corrections; Supervisor II - Region V - Corrections; Supervisor I - Region VI - Omaha, PDU; Supervisor I - Region VI - Nebraska Psychiatric Institution;Supervisor II - Region VI - Omaha Public Assistance Program; Supervisor II - Region III - General Services Office; Supervisor II - Region III - Hastings Regional Center; Supervisor I - Region III - Evaluation Center; Utility/Maintenance Superintendent - School for the Deaf; and Vocational Teacher II.
All certificated teaching employees of the Nebraska Department of Education who have individual contracts of employment and perform normal teaching duties at the Nebraska School for the Deaf and the Nebraska School for the Visually Handicapped.
An election within each unit determined herein shall be held as soon as possible. Judge Richard L. DeBacker is appointed as the Court's Representative for such election. Janet Stewart Arnold is appointed hearing examiner to determine initially all questions arising during the course of the election. The election shall be held under the immediate supervision of the Clerk of the Court. The parties shall meet with the Clerk at 10:00 o'clock A.M., on the 24th day of March, 1978, to agree upon or have determined all questions concerning the election not provided for in Rule 9.
Entered March 14, 1978.
[1] 200 Neb. 171 (1978).
[2] The status of the Cozad Resource Center as of July 19, 1977, was that it had a Director and Custodian and was in the process of employing additional "certified" personnel.
[3] Exhibits 15-21 illustrate that the Department's personnel manual disciplinary policy, grievance procedure, code of ethics, reduction in force policy, and retirement policy basically cover all employees with a few minor modifications for the teaching staff.
[4] The testimony of the Nebraska Department of Personnel's Chief of Labor Relations was that either a unit encompassing all the Department's employees or two units separating teachers from nonteachers would be most desirable. He testified that working conditions, geographic location, purpose and skills of professions and individuals, lines of supervision, interchange between employees, job functions and economy of the work site were factors to be considered.
[5] AFSCME and NAPE v. Neb. Department of Roads , 200 Neb. 171, 180 (1978).
[6] American Association of University Professors v. Board of Regents , 198 Neb. 243 (1977); AFSCME and NAPE v. Neb. Department of Roads , 200 Neb. 171 (1978).
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