5 CIR 447 (1982). Reversed. 214 Neb. 895, 336 N.W.2d 587 (1983).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Appearances:

For Petitioner:Mr. Theodore L. Kessner

For Respondent:Ms. Rjean Knowles and

Mr. Frank Schepers.

Before: Judges Orr, Kratz and Berkheimer.

BERKHEIMER, J:

This matter came on for hearing on Petitioner's Petition and Respondent's Answer. The Petitioner seeks a determination of an appropriate bargaining unit and election pursuant to Section 48-838, R.R.S. 1943, and, if successful in such election, certification as exclusive bargaining representative of employees in the bargaining unit found appropriate. The unit claimed appropriate by Petitioner is "all certificated teachers employed by the School District except administrative employees."

The allegations and admissions establish that Petitioner is an unincorporated association of certificated teachers employed by Respondent for the purpose of representing such teaching employees in all matters of employment relations and is a labor organization with its principal place of business in Omaha, Nebraska, and that Respondent is an employer as defined in Section 48-801, R.S.Supp. 1980. The Commission so finds.

The Respondent challenges the subject matter jurisdiction of the Commission on two grounds, one being that there is no "industrial dispute" as that term is used in Section 48-810, R.S.Supp. 1980, and the second being that the prodecures set forth in Section 79-1287 to Section 79-1295, R.R.S. 1943, the Teachers' Professional Negotiations Act (TPNA) have not been exhausted as required by Section 48-810. Respondent further alleges that if the Commission has jurisdiction the proper bargaining unit for collective bargaining and voting should be defined somewhat differently than as defined in the Petition. The evidence also establishes that to the extent the parties agree on a unit definition they disagree as to the makeup of the defined unit.

JURISDICTION

The facts relied upon the Respondent in asserting lack of jurisdiction because of absence of an industrial dispute and non-exhaustion of TPNA procedures are essentially the same and are not in dispute. The evidence is to the effect and the Commission finds that Petitioner has not requested recognition by the District for the 1982-1983 year; that for the past three years at least, Petitioner has requested recognition as a negotiation representative of the teachers and that the Respondent pursuant to resolutions of its Board has recognized Petitioner as a representative for past years. Respondent is a school district to which the TPNA is applicable.

On the question of the existence of a dispute, the District argues that to create a dispute there must be a request for recognition and a denial of that request or evidence that, given the history of the relations between the parties, a request for recognition would be futile. In two recent cases the Commission has ordered an election in instances where teachers organizations had neither requested nor had been refused recognition. In Alliance Education Association v. School District of Alliance , 4CIR 154 (1980), the Commission ordered an election not based on any request for and refusal of recognition. The Commission said:

The key statutory phrase in this matter is "without resolution of the dispute involved." The Supreme Court opinion in the Sidney case was careful to consider precisely "What is the dispute?" 189 Neb. at 546, 203 N.W.2d at 767.

The term "industrial dispute" is defined in Section 48-801 (7), R.R.S. Neb. 1979 Supplement:

Industrial dispute shall include any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, or refusal to discuss terms or conditions of employment.

The Petition in this matter seeks solely a determination of the appropriate unit for bargaining under the Commission of Industrial Relations statutes and a certification of the Alliance Education Association as the exclusive bargaining representative under those statutes. 4 CIR at 157.

The Respondent would distinguish the Alliance case on the ground that evidence in that case indicated that a demand for recognition would have been futile and that such futility was discussed by Petitioner's counsel and the hearing judge in a colloquy at the hearing. However, the three-judge panel in that case in its opinion and order made no finding regarding the futility of a request for recognition, and the opinion and order does not reflect any necessity for a request or refusal as a prerequisite to jurisdiction.

In Sidney Education Association v. School District of Sidney , 5CIR 408, Case No. 439 (January 28, 1982), the Commission entered an election order while a collective bargaining agreement was in effect, there having been no request for recognition for negotiation for the following contract year.

Section 48-838 R.R.S. 1943, independently requires the Commission to "determine questions of representation for purposes of collective bargaining for and on behalf of employees ...." and to "certify the exclusive bargaining agent for employees affected by Sections 48-801 to 48-823 following an election by secret ballot, which election shall be conducted according to rules and regulations established by the Commission." Subsection (2) of that Section requires the Commission to "determine an appropriate bargaining unit for bargaining and for voting in the election..." The Association's Petition raises a question of representation whereby it seeks a determination of an appropriate unit, an election, and if successful, certification as exclusive bargaining representative. This question of representation can be answered only by the Commission and by the employees in an election conducted by the Commission. Certification not only confers status as exclusive representative but protects that status for at least one year following the certification election. Agreement between an employer and an employee organization cannot confer on the organization the protected status of a certified bargaining representative under Section 48-838. Thus, a failure by the Petitioner to seek an agreement with Respondent with respect to representation and a failure to reach such an agreement cannot be prerequisites to a certification proceeding under Section 48-838. The Association having made the requisite showing of interest under Section 48-838(3) is entitled to an answer to its representation question.

Regarding exhaustion of the TPNA in Alliance, supra , the Commission said:

The Nebraska Teachers' Professional Negotiations Act contains no provisions pertaining to unit determinations and certification elections. The Negotiations Act is a "meet and confer" system, in which recognition of Education Associations and acceptance of subjects for bargaining are voluntary on the part of the School Districts. Further, such negotiations are "members only" negotiations on behalf of the members of the Education Association rather than "exclusive" negotiations on behalf of all employees within the appropriate unit.

The Commission of Industrial Relations statutes provide for mandatory, exclusive representation of all employees in an appropriate bargaining unit. The full text of these statutes can be applied to Class III, IV and V public school districts in Nebraska after all provisions of the Nebraska Teachers' Professional Negotiations Act have been exhausted without resolution of the dispute involved.

The Commission of Industrial Relations has subject matter jurisdiction of the Petition in this matter at this time because there is nothing within the Nebraska Teachers' Professional Negotiations Act pertaining to

this industrial dispute. The Petitioner is entitled to have a unit determined for the purposes of the mandatory, exclusive bargaining system of the Commission of Industrial Relations statutes. It is not necessary to determine at this time when the jurisdiction of the Commission might attach to a petition seeking a bargaining order or a wage order. Those are different industrial disputes and are not involved in this case. There are no matters proceeding, or which are capable of proceeding, under the Nebraska Professional Teachers' Negotiations Act insofar as a unit determination and certification election are concerned. Therefore, the Commission now has jurisdiction to resolve the dispute involved herein. 4 CIR at 157-158.

This reasoning was followed in Wynot Education Association v. School District of Wynot , 5CIR 160 (1981). In that case an organization had been recognized as an employee representative under the TPNA. Preliminary negotiating steps were underway under the TPNA. Nevertheless, the Commission ordered an election.

The answering of a representation question under Section 48-838 and certification of an exclusive bargaining agent under that section is outside of the scope of the TPNA and does not affect the rights and obligations of the parties granted and imposed by the TPNA.

The Commission finds and concludes that it has jurisdiction in this case.

APPROPRIATE BARGAINING UNIT

Section 48-838 (2) provides that in determining the appropriate unit for bargaining and for voting in an election "the Commission shall consider established bargaining units and established policies of the employer." In a very recent case, Nebraska Council of Local Unions No. 32, AFSCME v. County of Adams , 5 CIR 401, Case No. 438 (February 16, 1982), the Commission reviewed other relevant factors applicable in bargaining unit determinations citing Grand Island v. AFSCME , 186 Neb. 711, 186 N.W.2d 860 (1971); American Association of University Professors v. Board of Regents , 198 Neb. 243, 253 N.W.2d 1; American Association of University Professors v. Board of Regents , 203 Neb. 628, 279 N.W.2d 621 (1979); and State Colleges Education Association and Chadron State Colle*ge Teaching Faculty Bargaining Unit v. Board of Trustees of the Nebraska State Colleges , 3CIR 607 (1978). These factors include mutuality of interest in wages, hours and working conditions, duties and skills of the employees, the desires of employees, prior bargaining history, differences or similarities in skills or functions and the possibility of over-fragmentation of bargaining units. Supervisors are ordinarily excluded from bargaining units unless their supervisory duties are merely routine. See City of Grand Island v. AFSCME , 186 Neb 711, 185 N.W.2d 860 (1971) and International Brotherhood of Electrical Workers Local Union 1250 , AFL-CIO v. Northwest Rural Public Power District , 4 5CIR 74 (1980).

Petitioner seeks representation of a unit defined as "all certificated teachers employed by the School District except administrative employees."

The Respondent would describe the appropriate unit as "all full-time certificated employees of the District except administrative and other Certificated employees who perform managerial and supervisory duties." The distinction between the parties' unit definitions appear to be that the District would exclude all part-time employees and administrative employees and would also exclude employees not classed as administrative employees but who perform "managerial and supervisory duties."

The parttime-fulltime distinction affects three employee classifications:

1. Substitute teachers.

2. Regular part-time teachers who are employed four

hours per day.

3. "Gifted facilitators" who work one-half day per week.

Both parties agree on exclusion of substitute teachers, and the evidence in this case does not show mutuality of interest among substitute teachers and other teachers in wages and conditions of employment. They will be excluded. The Respondent would exclude and Petitioner would include regular part-time teachers working four hours per day. In past years the parties have not bargained with regard to these regular part-time teachers and they receive no fringe benefits other than a limited amount of sick leave. However, the Respondent determines the salary for these teachers from the schedule applicable to other teachers giving credit for educational attainment with one-half credit for longevity up to a smaller maximum than full-time teachers. The Commission finds from the evidence that regular part-time teachers working approximately four hours per day have a sufficient mutuality of interest with full-time teachers to be included in this unit. However, the Commission finds that "gifted facilitators" working only approximately one-half day per week do not have a sufficient mutuality of interest with other teachers to be included in the unit.

Both parties by their pleadings would exclude "administrative employees" from the unit and both parties have directed the Commission's attention to Section 79-101, R.R.S. 1943, which contains definitions of "teacher," "administrator," and "teach." These definitions are as follows:

79-101 .... (10) the term teacher shall mean any certified employee, who is regularly employed for the instruction of pupils in the public schools; (11) the term administrator shall mean any certified employee such as superintendent, assistant superintendent, principal, assistant principal, school nurse or other supervisory or administrative personnel who does not have as a primary duty the instruction of pupils in the public schools; ... (13) the term teach shall mean and include, but not be limited to, the following responsibilities: (a) The organization and management of the classroom or the physical area in which the learning experiences of pupils take place, (b) the assessment and diagnosis of the individual educational needs of the pupils, (c) the planning, selecting, organizing, prescribing, and directing of the learning experiences of pupils, ( d) the planning of teaching strategies and the selection of available materials and equipment to be used, and (e) the evaluation and reporting of student progress.

While the term "administrative employee" no doubt has different meanings in other employee contexts, the parties here have obviously drawn their proposed bargaining unit descriptions against the background of 79-101. Drawing a unit boundary between teachers and administrative employees is of course not the only way a bargaining unit in elementary and secondary schools could be defined; however, in view of the parties' agreement that administrative employees should be excluded and in the absence of any other discernible meaning of the term, the Commission in this case will read the term in the light of 79-101. As to the administrative employee exclusion the focus will be on two issues: (1) whether or not an employee position in dispute falls within the administrative employee definition and (2) if it does, whether or not exclusion of that employee position would result in an inappropriate unit under the factors above listed. The District would apparently also exclude non-administrative employees who perform managerial and supervisory duties. As will be noted hereinafter, the Commission does not find from the evidence that any employee of the District falls within such a classification.

The evidence deals with the question of nurses. While nurses receive the same fringe benefits as teachers, they have no teaching duties, are not paid on the basis of the teacher's salary index schedule and have never been considered a part of the bargaining unit. Section 79-101(101) specifically names nurses as administrators. The Commission finds that excluding nurses does not render the bargaining unit inappropriate, and they will be excluded. The District contends that a full-time "curriculum facilitator", counselors, and the school psychologist

should be excluded as administrative employees. The Association disagrees. The curriculum facilitator "works with the social studies program in its development and implementation dealing with staff members to make sure they know how to introduce a program." The facilitator is responsible for monitoring that program to make sure that it is carried out. The facilitator attends administrative meetings and has not been included in the bargaining unit in the past. The fact that this facilitator does not have any primary duty in instructing pupils or dealing with pupils favors administrative status, and the Commission finds that the curriculum facilitator is an administrative employee, and may be appropriately excluded from the unit.

The District would exclude counselors and the school psychologist. Both counselors and the school psychologist deal directly with pupils in the "assessment and diagnosis of educational needs of pupils" as set forth in 79-101(13)(b) and counselors work directly with students in solving their educational problems. Both counselors and psychologists are paid according to the teacher index salary schedule, receive the same benefits as teachers and have been included in the unit in the past. Neither are administrative employees and both should be included in this unit.

The record is not entirely clear as to whether the status of "activities directors" is in dispute. The Commission finds under the evidence that the duties of activities directors are both administrative and supervisory and that they should therefore be excluded.

Remaining to be considered are head teachers, lead teachers, department heads, assistant athletic directors, and intramural directors.

One-half of the time of a head teacher is devoted to performing the duties of a principal or assistant principal and only one-half time to teaching. Thus, the instructional duties are not found to be "primary." The head teachers have a part in the evaluation of teachers' performances. The head teachers are therefore found to be administrative employees with some supervisory duties and it is appropriate that they be excluded from the unit as such.

The evidence shows that the primary duties of department heads, lead teachers, assistant activities directors and intramural directors are the instruction of pupils. None perform more than a relatively small amount of duties which could be considered administrative. To the extent any of these exercise supervisory authority, such authority is not more than routine in nature. The Commission finds that all of these positions last listed should be included in the unit.

The Commission finds the following described unit to be appropriate:

All certificated teachers employed by the School District of Millard except (1) substitute teachers, (2) part-time teachers who customarily work substantially less than four hours per day, and (3) administrative employees, with the nurses, activities directors, curriculum facilitator, and head teachers being deemed administrative employees.

IT IS THEREFORE ORDERED:

1. That the Commission determines the following unit to be appropriate for voting in the election hereinafter ordered and for bargaining between the parties if Petitioner is certified as exclusive bargaining agent:

2. That an election within the bargaining unit above described be held as soon as practicable pursuant to Commission Rule 9; that Richard L. Berkheimer is appointed as the Commission's representative for such election; that Jerry L. Pigsley is appointed hearing examiner to determine initially questions arising during the course of the election; and that the election shall be held under the immediate supervision of the Clerk of the Commission.

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

Filed March 26, 1982.

_______________________________

MILLARD EDUCATION ASSOCIATION,	\|	CASE NO. 456
an unincorporated association,	\|	REPRESENTATION DOC. NO.155
	\|
Petitioner,	\|
	\|
v.	\|	OPINION AND ORDER
	\|
THE SCHOOL DISTRICT OF MILLARD,	\|
in the County of Douglas, in the	\|
State of Nebraska, a political	\|
subdivision,	\|
	\|
Respondent.	\|