5 CIR 401 (1982)


Petitioner, |
Respondent. |


For the Petitioner:Thomas F. Dowd

540 Keeline Building

Omaha, Nebraska 68102

For the Respondent: Arthur C. Toogood

Adams County Attorney

Room 203 Courthouse

Hastings, Nebraska 68901

Before: Judges Kratz, Berkheimer, and Orr.


The sole issue here is whether the bargaining unit should be a single unit, including both the employees of the Adams County Roads Department and the Adams County Court House, or a separate unit of employees for each department. The pertinent facts are as follows:

The offices in the court house are operated by an elected official. There is no elected official in the roads department. The supervisor of the roads department is appointed by the Adams County Board of Supervisors.

The employees in the court house, with the exception of the sheriff and the ambulance department staff[1], work 35 hours per week. The employees in the roads department work 40 hours.

In the court house, the office holder, or department head, submits a specified budget to the Board of Supervisors for approval. The Board of Supervisors also approves the budget for the roads department. The Board of Supervisors must approve any merit increase provided in the court house, but this process is perfunctory. The same procedure is followed in the Department of Roads.

Vacations are earned on the same basis in both the Department of Roads and in the court house, and both the employees in the court house and in the roads department, by virtue of state statute, receive pensions under the same qualifications formula.

An employee can appeal any disciplinary action to the Board of Supervisors, and this process is available to both court house and roads department employees. Also, the Board of Supervisors resolution on vacations and sick leave applies identically to employees in the court house and employees in the roads department.

There is no interchange of employees within the court house, and transfer from one department to the other occurs "very seldom". An employee cannot transfer from the roads department to the court house without going through the same employment process as a new employee.

The roads department employees operate out of a different facility than the court house employees. They have a "main shop", two miles from the court house, and some "local shops" throughout the county. The court house employees have a single facility with an annex.

There are seven highway facilities in the county. In six of those outlying district, the employees are unsupervised. Supervisors have radio contact with these employees, but there is no way the supervisor can attend them personally. "They know what they are supposed to do on a day to day basis." Most of the employees report to the main shops, and then proceed from there to various road projects for that particular day. These employees would include the bridge crew, the culvert crew, and the grading crew.

The court house employees stagger their lunch hour. One group has lunch between 11:30 & 12:30, and the other group goes from 12:30 to 1:30. Lunch time for the court house employees is determined by the department head. Roads department employees take a half hour for lunch. Since they are generally working in the field, they carry their lunch.

Employees in the court house are required to punch a time clock. This time card must then be approved by the department head for payment of wages. The department of roads employees also have time cards, but they do not use a mechanized time clock. Instead, they fill in their own time cards.

This past summer, the roads department employees worked a four day week, ten hours per day. Thus, "every day they were working an entirely different schedule than the people in the court house." This allows for three days off each week, instead of two. These employees would generally work 10 hours Monday through Thursday, and then take off Friday, Saturday and Sunday, except in case of an emergency.

The roads department work is more seasonal than the work in the court house. Additional employees are hired by the roads department in the summer, while employment in the court house during the summer remains generally stable.[2]

The roads department employees have no day to day contact with the employees in the court house. They work in totally different environments, and have no relationship to each other in their work schedule.

There is a different pay schedule for the employees in the roads department and the employees in the court house. Roads department employees are paid by the hour, while the court house employees are paid a monthly salary.

Department of Roads employees do construction work,

road maintenance work, and maintenance work on equipment. They build and maintain reads. They do physical labor, and they generally work outdoors. Only one employee works in the office. Employees in the court house are bookkeepers, secretaries, and clerical employees. They wear suits and dresses in the court

house and work clothes and hard hats in the roads department.

Coffee breaks in the court house are staggered for the convenience of each office. Employees are allowed 20 minutes both morning and afternoon. Roads department employees take coffee breaks at 10:00 A.M. and at 3:00 P.M. Because of the nature of their work, however, coffee breaks fluctuate as much as an hour with road department employees, depending on their assignment for that day.

The various department heads hire and fire in the

court house. In the roads department, the superintendent hires and fires.

The job descriptions in the Department of Roads are approved by the Board of Supervisors. The job descriptions in the court house are also approved by the Board of Supervisors, but the firm that drew up the job descriptions for the court house, did not draw up the job descriptions for the roads department. There was testimony that the job descriptions in the roads department were

"developed differently" than those in the court house.

The roads department employees now receive the same holidays as the court house employees, though they formerly did not.[3] The holiday schedule, however, operates differently in the roads department because of the nature of the work. Roads department employees will sometimes work on a holiday, such as when it comes on a Wednesday, and then observe that holiday on Friday. This holiday arrangement will not work in the court house because of the public responsibility of these offices.

Roads department employees normally work from 8:00 to 4:30. In the court house, employees work from 9:00 to 5:00.

This Commission, like the National Labor Relations Board, has based its unit determinations upon mutuality of interest in wages, hours and working conditions, the duties and skills of the employees, the desires of the employees, and extent of unionization. Grand Island v. AFSCME , 186 Neb 711, 186 N.W. 2nd 860 (1971). American Federation of State, County and Municipal Employees and Nebraska Association of Public Employees v. Department of Roads of the State of Nebraska , 3 CIR 77 (1963), 3 CIR 148 (1976), affirmed as modified, 200 Neb. 171, 263 N.W. 2d 643 (1978). The Nebraska Supreme Court has also said that in determining whether a particular group of employees constitutes an appropriate bargaining unit where an employer operates a number of facilities; relevant factors include prior bargaining history; centralization of management, particularly in regard to labor relations; extent of employee interchange; degree of interdependence of autonomy of the facilities; differences or similarities in skills or functions of the employees; geographical location of the facilities in relation to each other; and possibility of over fragmentation of bargaining units. American Assn. of University Professors v. Board of Regents , 198 Neb. 243, 253 N.W. 2d 1. See also American Assn. of University Professors v. Board of Regents , 203 Neb. 628, 279 N.W. 2d 621, and State Colleges Edu*cation Association and Chadron State College Teaching Faculty Bargaining Unit v. Board of Trustees of the Nebraska State Colleges , 3 CIR 607 (1978).

In the case of Sheldon Station Employees Assn. v. Nebraska Public Power District , 202 Neb. 391, 275 N.W. 2d 816, the Supreme Court included the established policies of the employer and the statutory mandate to insure proper functioning and operation of governmental service, as additional factors to be considered in determining the appropriate collective bargaining unit.

Applying these factors to the facts of this case, we conclude there should be two separate bargaining units, rather than one. One unit should include the employees in the Department of Roads, and the other should include the court house employees.

The roads department employees receive different wages than the court house employees (hourly versus salary), work different hours (40 hours versus 35, 4 days per week in the summer versus 5, and 8:30 to 4:30 versus 9 to 5), and have several different working conditions (application of holiday schedule, lunch hour, coffee break, time clock, supervision).[4]

The duties of the employees in the court house differ significantly from those in the roads department. One group works inside doing stenographic, secretarial and clerical work, while the other works outside with construction utensils and equipment. The skills involved in maintaining, repairing and building roads are clearly and obviously different than those required for doing office work. There is no interchange of employees between the court house and the roads department, and these employees are located geographically two miles apart. There is no similarity in their functions and only modest uniformity in wages, benefits and conditions of employment. There is no centralized management of the employees in the two locations (elected officials in the court house and a Board of Supervisors appointed official in the roads department), and each facility is autonomous. To separate the employees in the roads department from those in the court house does not constitute an over fragmentation of the bargaining units, and this division of employees for collective bargaining purposes will not in any way interfere with the proper functioning and operation of governmental service.

There is no evidence to show that the desires and policies of the employees, extent of unionization, and prior bargaining history should be considered as applicable factors in this unit determination.

It is quite clear there is very little community of interest between court house employees and road department employees in Adams County. Consequently, they should each be included in a separate unit for collective bargaining.

It is so ordered.

All Judges assigned to the panel in this case join in the entry of this Opinion and Order.

Filed February 16, 1982

[1] The sheriff's office works a regular 40 hour week, and the ambulance department employees average 40 hours. They are 24 hours on, 48 hours on call, 24 hours on, and 48 hours off.

[2] Additional employees may be added in the court house at election time.

[3]At one time, Arbor Day and Columbus Day were observed as holidays by the court house employees but not by the employees in the roads department.

[4] Also, several working conditions are identical, such as vacation, sick leave and number of holidays.