3 CIR 533 (1978) Reversed and remanded with directions. See 202 Neb. 391, 275 N.W.2d 816 (1979).


LOCAL NO. 31 |
Plaintiff, |
Defendant. |

Filed November 27, 1978.


For the Plaintiff:Robert E. O'Connor & Associates

For the Defendant: Barlow, Johnson, DeMars & Flodman

Before: Judges Wall, Kratz and McGinley.


This industrial dispute comes before us upon the representation petition of plaintiff, International Association of Machinists, Local No. 31, seeking to represent certain employees of the defendant, Nebraska Public Power District. We find that we have jurisdiction of the parties and of the subject matter of the controversy.

The bargaining unit sought by plaintiff consists of all full-time employees of the defendant who are located at the Kramer Power Station, excluding supervisors, guards and clerical employees.

The defendant contends that the above described unit is not appropriate, and alleges that "as a minimum" an appropriate unit should include employees located at all its generating stations which are a part of its power production or power supply who are compensated at an hourly wage, excepting supervisors.

A detailed description of the defendant's organization and structure is contained in our opinion in Sheldon Station Employees Association v. NPPD, 3 CIR 228-1 (1977) and need not be repeated here. While the defendant has seven generating facilities, the plaintiff is seeking here to represent the employees at a single facility.

In the Sheldon Station case we recently held a single-plant unit to be appropriate. The factors considered in that determination were the prior bargaining history, centralization of management and labor policy, extent of interchange of employees, the interdependence and autonomy of facilities, geographical location of facilities, similarity of skills at facilities, uniformity of wages, benefits and working conditions,current governance of the district, established policies of the employer, degree of unionization, and the possibility of undue fragmentation of bargaining units. Sheldon Station v. NPPD, 3 CIR 228-1 (1977).

The factual setting involved in the instant case generally coincides with that in the Sheldon Station case. The district has established and dealt with separate employee committees at each plant. No system-wide employee Committee has been initiated.

While there is much centralization of management, considerable discretion remains with the local plant superintendents in personnel matters. Although personnel policies originate and are monitored by the main office in Columbus, the day to-day implementation of this policy is the responsibility of the local plant managers.

The seven plants are geographically dispersed throughout the state. There is little interchange of employees among the facilities except for transfers to new plants. Although job openings are posted at all facilities, they are usually filled by promotion within the same facility.

The district has a system-wide compensation schedule and, apparently in response to employee dissatisfaction, has commissioned a study by Hay Associates to review its current compensation plan. This study is scheduled for completion in January of 1979. However, any changes in compensation levels which would be indicated by this independent study would be subject to the approval of the Board of Directors.

After weighing the above described factors, and taking into account all of the policies and interests 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 Kramer Power Station, Bellevue, Nebraska.

The crucial factors in the instant case are the considerable geographic separation of the facilities, the broad discretion of the plant superintendents, the absence of significant employee interchange between facilities, the prior history of single-plant employee committees, and the desires of the employees.

The defendant's position that only a district-wide bargaining unit would be appropriate is diluted by its past dealings with local employee committees which it set up. Furthermore, the District has made no showing that undue fragmentation would result from a single-plant unit.

The defendant alleged in its Answer that the Plaintiff failed to seek voluntary recognition prior to bringing its representation petition to the Court. In the circumstances of this case, we find a formal demand for voluntary recognition not to be a necessary prerequisite, as the District had previously expressed its Position on bargaining units in the Sheldon Station case .In addition, respondent's answer clearly establishes that a dispute exists. There appears to be no necessity to require the plaintiff to engage in an obviously futile gesture, and we so hold under the facts of this case.

At trial, the defendant requested that the Clerk recheck the union's showing of interest specifically to see if twelve named individuals had signed authorization cards. Curiously, only six of these names had appeared on the list of employees submitted by the defendant to the Clerk for the statutory determination.

By reference to the Clerk's Report to the Court, filed March 20, 1978, it is noted that the union's showing of interest was 36 out of 59 employees, or 61%. Whether these individuals signed authorization cards is not determinative of anything. The union's showing of interest would be, in any event, far in excess of the 30% statutory requirement.

IT IS, THEREFORE, ORDERED that an election to determine the collective bargaining agent, if any, shall be held as soon as reasonably possible. Judge Donald F. McGinley is designated as the Court's representative for such election, which shall be held under the immediate supervision of the Clerk of this Court, Janet Stewart Arnold. Janet Stewart Arnold is appointed Hearing Examiner to determine initially all questions arising during the election process not covered by Rule 9. The parties shall meet with the hearing examiner on the 1st day of December, 1978, at 10:00 o'clock, A.M., in the offices of the Court. In the absence of either or both of the parties, the examiner shall proceed to set the details of this election.