3 CIR 77 (1976). Affirmed as modified. 200 Neb. 171, 263 N.W.2d 643 (1978).


Plaintiffs, |
v. |
Defendant, |
Intervenors. |
PUBLIC EMPLOYEES, A Corporation | REP. DOC. NO. 36
Plaintiff, |
v. |
Defendant. |

Appearances: For Plaintiff, Robert E. O'Connor and

Robert E. O'Connor, Jr.

For Defendant, Robert Avey and John Regan

For Intervenor, Steven D. Burns

Before: Wall, P.J., Rudolph, and Green, J.J.


The issue in this case is the appropriate bargaining unit for the Department of Roads. The Intervenors, Nebraska Association of Public Employees, and the State of Nebraska, Department of Roads, both contend that the appropriate bargaining unit is the whole department. On the other hand, the Plaintiffs, American Federation of the State, County and Municipal Employees, AFL-CIO (AFSCME) contend that the one appropriate unit is the maintenance division.

The Intervenors (NAPE) and the Department of Roads, claim 48-838 requires that the appropriate bargaining unit in state government is a department-size unit. Section 48-838 provides:

"It shall be presumed, in case of governmental subdivisions such as municipalities, county, power districts, or utility districts with no previous history of collective bargaining, that units of employees of less than department size shall not be appropriate."

The language of the Act clearly shows that the Act was directed at governmental bodies below state level. The use of the general work subdivision and the examples of municipalities, counties, power districts, etc. show that the direction of the Act was to governmental units below the level of state government. In addition, the legislative history of the Act shows that the only governmental bodies considered were those below the level of state government. At the hearing of the bill, it was clear that the problem giving rise to the bill was this court's decision in IBEW v. City of Lincoln , Case No. 48 where this Court held that employers and employees can agree on bargaining units and hold elections but need not do so. The Court at 48-14, 15, 161 said:

"But this analysis does not lead to the conclusion that an employer must grant exclusive representative status to a union representing a majority of the employees. The Nebraska statutes do not include an express requirement that the representative designated or selected by a majority of the employees becomes an exclusive representative, as the National Labor Relations Act and many state statutes do. Additionally, the Nebraska statutes do not contain any mandatory election or certification procedures as the National Labor Relations act and many state statutes, such as Wisconsin and New York, do.

Since an employer is neither required to grant exclusive recognition nor to agree to an election for that purpose, an employer can insist as a part of the election agreement upon any condition which is not in violation of state or federal constitutions, statutes or other law. The eighty percent participation requirement sought in this case is not in violation of state or federal constitutions, statutes or other law. Plaintiff's Brief cites no authorities that the participation requirement offends any applicable constitutional, statutory or other prohibition. With respect to the one-man-one-vote concept, the recent decision of the United States Supreme Court upholding a West Virginia requirement that 60% of the voters in a referendum election approve bonded indebtedness or tax increase by a political subdivision would strongly support the LES requirement insofar as federal constitutional questions are concerned. Gordon v. Lance , 91 Sup. Ct. 1889 (1971). See also Brenner v. school District of Kansas City , 315 F. Supp. 627 (W.D. Mo. 1970). Defendant's Brief cites a number of instances in which the Nebraska Constitution requires a "super majority" on some issue of decisional voting. We know of no constitutional, statutory or other rule which an eighty percent participation requirement would offend."

The result of this case was that the employer could set the terms for the exclusive bargaining unit but if he did not, he was required to bargain with every group of employees.

It was to remedy this defect that 48-838 (LB 1228) was passed.

Mr. Douglas Marti representing NAPE at the hearing said:

"Right now, the reason certain governmental bodies are supporting this bill is that, as the law now stands, after the decision by the Court of Industrial Relations that in the IBEW case v. Lincoln any little group of employees can have their own agent, their own bargaining agent; and this could mean that in the case of a city or a municipality, fifty of their employees in one department could be represented by one group, 200 could be represented by another group, and 200 could be represented by another group. Theoretically they'd be required to bargain with all three of those representatives. There is no way right now under the law for anyone to come in and say, 'We represent the majority of this group of employees,' go through an election, win the election, and then represent all of the employees in that particular bargaining unit. That is what this bill is attempting to provide and it is definitely necessary."

The reference, of course, was to a municipal situation and the fact that the Court had held that it was powerless to set out appropriate bargaining units using NLRB precedents.

During the discussion on the floor, the reference again was to municipal authorities. Senator Carpenter said on the floor debate of LB 1228, March 20, 1972:

"If you read the bill you will notice that there are substantial safeguards to avoid a situation which would occur in Douglas County which we are concerned about. Whereby the public employer could be dealing with fifteen or twenty different bargaining units in one division of the Omaha city government, not one but fifteen or twenty different bargaining agents."

Section 48-838, therefore, did two things to correct the previous act. First, it gave authority to this Court to establish bargaining units and to run elections; and second, it restricted the authority concerning bargaining units to department-size units in cases involving governmental subdivisions such as municipalities, etc. The Court has jurisdiction, of course, of more than employees of governmental subdivisions, subject to the ACT. Such employees are the employees of privately-owned public utilities and state government employees. As to such employees, there is no presumption. Notwithstanding there is no presumption, this Court is authorized to establish appropriate bargaining units. The standard to be used is clear.

The Supreme Court in City of Grand Island v. American Federation of the State, County and Municipal Employees , 186 Neb.711, 714, 185 N.W. 2d 860, 863 (1971), said that decisions under the National Labor Relations Act are "helpful but not controlling upon the Court." The Court further found the federal law "helpful" in resolving appropriate unit and supervisory issues in that case.

As the Supreme Court said in that case:

"In determining what is an appropriate bargaining unit under federal law, consideration has been given to mutuality of interest in wages, hours and working conditions, the duties and skills of employees, the extent of union organization among the employees and the desire of the employees."

Applying this standard to this case, we find that the Department of Roads is one of the largest, if not the largest, department of government. That is, it has essentially two functions, the first function being the planning design and construction of new roads. Included in this function is the updating of old roads. In carrying out this function, the Department does not do the actual construction but contracts out this work to private contractors. The Department's work, therefore, is of a professional, semi-professional and supervisory nature. Of course, in doing this function, persons of little or no professional skill are used but such non-professional and non-supervisory work is ancillary to the main operation of the Department of Roads. The other part of the work is the maintenance of the existing road network including snow removal. This work consists almost entirely of manual skills and does not require special education and training. The skills needed in doing this kind of work are generally learned on the job. In addition, the only skilled work required relates almost entirely to repair, maintenance and use of medium-heavy grading equipment. Such work is similar to work done by skilled heavy equipment workers hired by the private contractors who build the highways rather than to any work performed by employees from other parts of the Department of Roads. Clearly, the working conditions are quite different than the headquarters personnel of the Department as most of the maintenance employees are spread out throughout the state. The work is also quite different than that of the lower level engineering personnel, such as engineer aides in that the engineer aides follow the contractors and must work long hours in the summer. Engineering work is much more seasonal than the work of the maintenance men.

Although a minimal amount of interchange of work exists between engineers and maintenance men, the evidence showed that there was very little interchange between workers in maintenance and other workers in the Department of Roads. The evidence also showed that among maintenance employees there was a mutuality of interest concerning wages, hours and working conditions that is substantially different than the remaining employees of the Department of Roads.

This being the case, the Court finds that there should be two bargaining units at the Department of Roads, one including the maintenance personnel below supervisory personnel and this unit shall include, in addition, the following personnel from the Maintenance Division, Lincoln Headquarters; Highway Maintenance ManIII, Warehouseman I, Sign Printer II, Sign Printer I, Laborer, Highway Maintenance Man II, Auto equipment Repair Foreman, Machinist, Auto Mechanic II, Auto Mechanic I, Auto Serviceman, Service Station Attendant and Equipment-Maintenance Mechanic. Further, this unit shall include from the Capital Facilities and Transportation Services Division and from the Central Supply Division the following personnel: Carpenter III, Carpenter II, Painter II, Maintenance Mechanic III, Maintenance Mechanic II, Maintenance Mechanic I, Custodial Supervisor II, Custodian III, Custodian II, Security Guard, Groundskeeper II, Groundskeeper I and Vehicle Operator I; Warehouseman II, Warehouseman I, Vehicle Operator II, and Shipping Clerk II.

These latter positions are included because the positions call for blue-collar workers with the same skill and training as those required generally in the maintenance personnel. The other bargaining unit shall include all other non-supervisory positions in the Department of Roads.


The dispute between the parties be settled upon the terms and conditions set forth in the foregoing opinion.

Entered January 23, 1976.