3 CIR 542 (1978).


Unincorporated Association, |
Petitioner, |
a political subdivision |
of the State of Nebraska, |
Respondent. |

Filed October 27, 1978.


For the Petitioner:Theodore L. Kessner

For the Respondent:Harold W. Kay

For the Intervenor:James B. Cavanagh

Before: Judges Green, Wall, and Gradwohl.


This case is a representation case, which involves the question of the appropriate design of a unit or units within which the teaching employees of the Mid-Plains Technical Community College Area (Area) shall be represented. The contest is between Mid-Plains Education Association, which seeks to represent all the teaching personnel of the college area and Mid-Plains Vocational Educators, the intervenor, who seeks to represent teaching personnel at only one of the campuses of the college area. The Area, itself, is neutral on the issue of appropriate unit design.

The Area operates three campuses, the McCook campus, the McDonald-Belton campus, which is located in North Platte, and the Voc-Tech Campus, which is also located in North Platte. The McCook campus and the McDonald-Belton campus offer the academic courses provided by the Area, and their faculties are selected upon the basis of standard academic qualifications. The Voc-Tech campus, as its name implies, offers the vocational and technical courses of the Area and its faculty is selected upon the basis of experience with technique rather than on the basis of academic background. There are 75 professional teachers employed by the college area. Thirty of the teachers teach at the Voc-Tech campus, while the other 45 teach at the two academic campuses. There is currently little interaction between the faculties of the two North Platte campuses despite their proximity.

The Mid-Plains Education Association seeks a unit composed of all of the teaching personnel on all three campuses. The Mid-Plains Vocational Educators seek to represent a unit composed solely of teachers at the Voc-Tech campus. Thus, this case raises only one issue. The parties have phrased that issue as:

"Should there be a single college-wide unit for all professional teaching employees or 2 units, one for the professional teaching employees who perform their duties on the Voc-Tech campus and another for the professional teaching employees at the McCook and McDonald-Belton campuses."

The mid-Plains Educational Association has made the requisite showing of interest in the unit which it seeks to represent and the Mid-Plains Vocational Educators have made the requisite showing of interest in the unit which they seek to represent. Thus, the statutory prerequisite for an election is satisfied in either unit. Section 48-838(3). Since each of the several campuses of the college area have their own dean, though the administration is otherwise centralized, each would appear to constitute a department within the meaning of Section 48-838(2). Therefore, the statutory presumption in favor of units of departmental size is irrelevant. While there is some prior bargaining history in the larger unit sought by the Mid-Plains Education Association, it encompasses too short a period to be decisive. There is neither an established bargaining unit, which has existed for a long enough period to be taken into account, nor are there established bargaining policies of the employer, which are relevant. See Section 48-838(2).

While ordinarily, the employer's interest in a larger unit would be a relevant consideration, see, South Sioux City Municipal Electricians Association, Case No. 175, 3 C.I.R. 318, 321-322, that interest is not involved here because of the employer's neutrality. The Area has waived whatever interest it would otherwise have in the avoidance of the fragmentation of bargaining units by its position here. cf. House Officers Association v. University of Nebraska Medical Center, 198 Neb. 697, 255 N.W. 2d 258, 263 (1977). In any event, two units composed on the one hand of academic and on the other hand of vocational educators would not be such a fragmentation of bargaining units as to be decisive, if other factors point to division. See, State College Education Association v. Board of Trustees, Case No. 241.

The community of interest standards which we apply in unit determinations are designed to insure that a unit is composed of "a group of employees with a sufficient commonality of circumstances to insure against the submergence of a minority with distinctively different interests in the terms and conditions of their employment." Emporium Capwell Co. v. Western Addition community Organization, 420 U.S. 50, 64 (1975); A.A. U.P. v. Board of Regents, 198 Neb. 243, 253 N.W. 2d 1, 11 (1977). If a group of employees "plainly do not share a community of interests broad enough to justify inclusion . . . in the bargaining unit," their inclusion would be improper. Allied Chemical Workers v. Pittsburg Plate Glass Co., 404 U.S. 157, 173(1971); A. A. U. P. v. Board of Regents, supra, 253 N.W. 2d 13#-14. On the other hand, a division of a group of employees into two units dilutes the total bargaining strength of the group of employees. Because of the employer's position in this case, only employee interests are centrally involved. Thus, we must strike a balance "on the employee's side . . . between the contribution made by a larger unit to the bargaining strength of that unit as against a special interest of some subsidiary group within the proposed larger unit in a separate representative." South Sioux City Municipal Electricians Association, supra.

A unit composed of both academic and vocational educators is faced with a conflict between the somewhat diverse interests of those two groups. The current system of paying employees of the Area is based upon the matrix system typically used in elementary and secondary education in Nebraska. That is, a base salary is established for a person with the minimum academic credentials and no experience and pay increments are granted both for advanced academic training and years of experience. The same system is applied to vocational educators, but in lieu of academic qualifications, an attempt is made to equate certain vocational qualifications with academic qualifications. In addition, credit is given for work experience in lieu of teaching experience.

It is clear that the task of equating vocational background with academic background and the task of equating work experience with teaching experience is a potentially divisive one in which the teachers on the two academic campuses have interests divergent from those of the teachers on the vocational campus. This conflict might not be an insoluble one, but it is a real conflict. The conflict takes on additional importance since the vocational educators would be outnumbered by those with academic training in a system-wide unit.

If only a system-wide unit were sought, the conflict between vocational and academic educators might not be decisive. See A.A.U.P. v. Board of Regents, supra, 253 N.W. 2d 11-12; Grand Island v. A.F.S.C.M.E., 186 Neb. 711, 155 N.W. 2d 866, 863 (1971). However, since a large number of the vocational educators have shown dissatisfaction with the system-wide unit, that dissatisfaction should be taken into account. We, therefore, establish provisionally two units, one on the vocational campus and one for the academic campuses.

The teachers at the vocational campus can choose among the Mid-Plains Vocational Educators, which seeks the narrower unit, the Mid-Plains Educational Association, which is seeking a more comprehensive unit, and no agent. The academic teachers at the McCook and McDonald-Belton campuses will have a choice between representation by Mid-Plains Education Association and no agent. If the Mid-Plains Vocational Educators secure a majority in the small unit, that union will represent those employees in that separate unit; the votes of the employees at the other two campuses will then be tallied as a separate group to determine whether the Mid-Plains Education Association has been selected by a majority of that separate unit or whether those employees will go unrepresented. If, on the other hand, the employees at the vocational campus do not give any proposal a majority, the election will be continued by a second ballot between the two proposals receiving the highest vote. Again, if MidPlains Vocational Educators receives a majority, it will represent the small unit. If it does not receive a majority, the votes on the second ballot at the vocational campus and of the other campuses will be pooled. The Mid-Plains Education Association will be certified if selected by a majority of employees in the pooled group. In other words, the election procedure, though slightly modified to meet the demands of the statute, will essentially be that utilized by the N.L.R.B. in elections conducted pursuant to the doctrine of Globe Machine & Stamping Co., 3 N.L.R.B. 294 (1937). See, Gorman, Labor Law, p. 72.

The elections ordered by this opinion shall be held as soon as possible. Judge J. Patrick Green is appointed as the Court's representative for such election. The Clerk of the Court, Janet Stewart Arnold, is hereby 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 Clerk shall promptly convene a meeting of the parties to agree upon or have determined all questions concerning the election, which questions are not resolved by the provisions of Rule 9 of this Court.