3 CIR 400 (1978)



Petitioner |
NEBRASKA, A Political Division of |
the State of Nebraska, |
Respondent. |

Filed April 11, 1978.


For Petitioner: David D. Weinberg

For Respondent: J. Kirk Brown

Before: Judges Wall, DeBacker, and Green.


The Retail and Professional Employees, Local Union No. 1015, AFL-CIO, has petitioned this Court to determine the appropriate bargaining unit and conduct a certification election among certain employees of the Nebraska Department of Correctional Services.

The unit requested by Petitioner is as follows:

All employees employed at the Youth Development Center Kearney facility at Kearney, Nebraska. EXCLUDING supervisory employees as defined in the Nebraska Court of Industrial Relations Act and confidential secretaries.

The Department's position is that the above-described unit is inappropriate in that it encompasses the employees at only one of its facilities, and that an appropriate unit would include all employees, excluding teacher and correctional officers.

Based on the evidence adduced at trial the Court finds generally in favor of Respondent and against Petitioner.

The factors considered in determining bargaining units include prior bargaining history, centralization of management (particularly in regard to labor relations), extent of employee interchange, degree of interdependency or autonomy of the facilities, differences or similarities in skills or functions of the employees, geographical location of the different facilities, possibility of over-fragmentation of bargaining units, and desires of the employees.[1]

In arguing for a broader unit, Respondent relies upon

SS48-838, R.R.S. 1943, which provides in part:

The Court shall also determine the appropriate unit...and in making such determination the Court shall consider established bargaining units and established policies of the employer. It shall be presumed in the case of governmental subdivisions such as municipalities, counties, power districts, or utility districts with no previous history of collective bargaining, that units of employees of less than departmental size shall not be appropriate.

The Supreme Court has recently held in Nebraska Association of Public Employees v. State Department of Roads, 200 Neb. 711 (1978), that the presumption set forth in this section is not limited in applicability only to the governmental subdivisions specifically enumerated therein. In that case, the Supreme Court applied this presumption against units of less than department size to the State Department of Roads, finding it to be a governmental subdivision with "no previous history of collective bargaining."

Turning to the facts of the instant case, in light of the above-stated criteria, the Court finds that the unit sought by petitioner is inappropriate in that it would result in over-fragmentation of bargaining units.

The Department of Correctional Services is composed of four divisions: the Division of Administrative Services, the Division of Adult Services, the Division of Juvenile Services, and the Division of Community Centered Services.

The Division of Administrative Services is the central office of the agency and is located in Lincoln, It is the basic administrative section of the agency and contains the personnel section.

The Adult Division consists of the state penitentiary and reformatory in Lincoln, and the Center for Women in York. Two additional units are to be constructed which are a Diagnostic and Evaluation Center in Lincoln and a minimum/maximum security unit in Omaha.

The Division of Juvenile Services includes the Youth Developmental Center at Kearney, the site of petitioner's proposed unit, and the Youth Developmental Center at Geneva. The Kearney facility houses male juvenile offenders, while the Geneva facility is concerned with female juvenile offenders.

The Division of Community Centered Services contains the Parole Administration, and the Post-Care Program.

At the outset it is evident that petitioner's proposed unit encompasses only part of one division of the Department of Correctional Services. The evidence did show, however, that immediate supervision of the work performed by the Kearney employees was done by management personnel at the Kearney facility. There is infrequent interchange or contact between the Kearney employees and the Department's other facilities which are distinctly separate geographically.

The Department has been bargaining with a unit of Correctional officers encompassing the penitentiary, reformatory, and the post case units located in Omaha, Lincoln and Norfolk. That unit resulted from a certification election conducted by this Court, and does nothing to diminish the Department's arguments for a larger department wide unit in opposition to petitioner's proposed unit in this case.

The petitioner failed to prove a lack of mutuality of interest in wags, hours, and working conditions among the Kearney employees and other Department employees holding similar job classifications, but located at other facilities. There was no evidence that the Kearney employees exhibited differing skills and functions from other department employees with the possible exception of correctional officers who already have a separate unit.

The Department presented evidence illustrating a high degree of centralization in management regarding personnel matters. Under the authority of its director, the Department has a personnel officer who is primarily responsible for the creation and administration of personnel policies, within guidelines set froth by the Nebraska Department of Personnel.

The personnel officer monitors promotions, demotions, and other changes in job classification, as well as salary increases and adjustments.

Except for teachers, the Department's employees are classified under the State Personnel System. As such, they come under the State Classification and Pay Plan (Exhibit 5) which sets forth job classifications and pay grades which are to be applied uniformly throughout the state. These same employees are also subject to the State Department of Personnel Rules and Regulations (Exhibit 6) which govern such areas as job classifications, salary administration, hiring, probationary status, promotions, transfer, disciplinary action, demotions, suspensions, grievances, and performance evaluation. The Rules and Regulations are to be uniformly applied throughout all the divisions of the Department of Corrections as well as to other state departments.

The testimony at trial revealed that with few exceptions, the job classifications within the proposed unit also existed at other facilities within the Department, and that duties, work hours, and salaries are uniform within the job classifications throughout the state.

The Department's expert witness, John Russel, who is the state's Chief of Labor Relations, testified concerning possible management problems resulting from the proposed unit. It was his opinion that problems would occur within a Department where part of the employees of a certain classification are within a bargaining unit while others are not, or where employees of a certain classification are represented in more than one bargaining unit. His concerns included the difficulty and confusion which could result from bargaining for and administering several contracts covering similarly classified employees within a single department.

Apart from the validity of these arguments, it is clear that the evidence of petitioner has not overcome the presumption contained in S48-838 against units of less than departmental size.

Petitioner relies on this Court's opinion in Sheldon Station Employees v. NPPD , 3 CIR 228-1(1977), to support its position. The facts in that case are, however, quite different. The unit involved was located at a power generating plant, a situation quite similar to a private sector industry. The employer had also previously dealt with single-plant employee committees, a factor missing in the instant case.

For the foregoing reasons, the Court finds that the petition herein should be and hereby is dismissed.