8 CIR 22 (1985)


LOCAL NO. 554 affiliated with |
International Brotherhood of |
Teamsters, Chauffeurs, Ware- |
housemen and Helpers of |
America, |
Petitioner, |
Respondent. |


For the Petitioner: M.H. Weinberg

Weinberg & Weinberg, P.C.

8901 Indian Hills Dr., Suite 1

Omaha, NE

For the Respondent: Bruce G. Mason

Ross & Mason, P.C.

Suite 301 Tower Plaza Bldg.

8420 West Dodge Road

Omaha, NE

Before: Judges Orr, Kratz, and Mullin


This matter came on for hearing on Petitioner's Petition for a certification election pursuant to Section 48-838, R.R.S. 1943. The Petitioner seeks certification of the General Drivers & Helpers Union, Local No. 554, as the exclusive bargaining representative of a unit of employees of the Petitioner described as:

All home teachers, EXCLUDING office clerk employees, supervisory employees, maintenance employees, and all other employees of the Respondent located in Douglas, Dodge, Cass, Washington, and Sarpy Counties.

The Respondent filed an Answer alleging that the unit described by Petitioner is inappropriate because it does not include other non-supervisory employees of the Respondent, who it contends have similar duties and who share a mutuality of interest in wages, hours and working conditions with the home teachers described by the Petitioner.

The Respondent alleges that the appropriate bargaining unit consists of:

All residential and vocational employees of the respondent providing direct programmatic services to the mentally retarded, excluding supervisory services,clerical and maintenance employees.

The only issue for resolution by the Commission is a determination of the appropriate bargaining unit.

The Respondent, Eastern Nebraska Community Office of Retardation (hereinafter referred to as "ENCOR"), is one of the three program offices of the Eastern Nebraska Human Services Agency (hereinafter referred to as "ENHSA"). ENHSA was organized and exists under an interlocal agreement, pursuant to the authority of Section 23-2201, et. seq., R.R.S. 1983. The other two programs are the Eastern Nebraska Community Office of Mental Health and the Eastern Nebraska Office on aging.

ENHSA provides the central administration for all three programs. ENCOR is divided into two functional program components, residential and vocational. The basic goal of ENCOR is to develop in each retarded person the skills necessary to live as independently and as normal as that person is capable of doing. In accordance with this approach to the treatment of the mentally retarded, ENCOR places mentally retarded clients in the least restrictive residential and vocational settings possible, or in other words, those which offer the individual the greatest degree of independence appropriate to his or her skill and behavioral level.

The ideal setting for adult clients is one in which they live, work, and function with minimal assistance from ENCOR staff. Thus, the preferred residential setting is one in which a client lives in an apartment leased and paid for in his or her name, and in which the client works and functions relatively independently, with periodic supervision and assistance from one or more of the ENCOR staff people.

The next preferable arrangement is called a "shared-expense facility." In this type of setting, the staff member may live in the same apartment with one or more clients and will share expenses in some method. The ENCOR personnel may rotate in and out of the living quarters on a shift basis, or some other periodic change.

The most restrictive environment is the "group home." In a group home, three to six clients live together under continual supervision and care by one or more ENCOR staff members.

Home teachers work primarily with children in their own family homes as foster parents. Accordingly, they fully integrate the retarded children into their family lives and provide them with a family atmosphere.

Each of the individual clients who are involved in any one of the ENCOR programs has an Individual Program Plan (hereinafter referred to as "IPP") developed. The IPP is the method by which ENCOR assesses a retarded individual's stage of development and determines the future goals that he or she can reasonably meet and how best to meet those goals. An IPP is developed annually by all ENCOR staff people working with the client and by other appropriate individuals, such as physicians and school teachers. Part of the ENCOR program is also to provide vocational training, when appropriate, for the participating clients.

The overall goal of the ENCOR program is to develop the skills and behaviors of the clients in an orderly, programmatic fashion. Each client is individualized by the client's separate IPP. Regardless of whether the client is in the most restrictive or the least restrictive residential and vocational setting, the goal for the client is exactly the same.

The actual personnel who work directly with clients and provide direct programmatic services to the retarded include residential assistants, lead residential assistants, residential associates, production managers, program managers, home health assistants, and home teachers. All of these employees have a community of interest in achieving a common goal for each client based upon that client's own IPP.

Residential assistants and residential associates work primarily with adults in client-paid, shared-expenses, or group home facilities. Residential assistants may also work with children, but this is generally in a group home setting. Residential assistants generally work regular, assigned shifts of a required number of hours in the facilities they are assigned to.

The lead residential assistant is quite closely associated to the residential assistant, except with slightly more responsibility.

The job of the program managers and production managers is similar to that of the residential assistants and residential associates, except they are in the vocational area, rather than the residential setting. The primary goal of these individuals is to help the clients develop vocational skills that will ultimately enable them to engage in independent employment.

Home health assistants are individuals who come into the actual home of parents who have mentally retarded children and stay with the mentally retarded children so the parents can get away from the home for a specified period of time.

The home teachers actually take the clients into their home and fully integrate the client into their family lives. Home teachers are paid on a monthly basis and receive two weekends of relief per month in which trained relief workers care for their client from Friday through Sunday afternoon.

We are now confronted with the question, "What is the appropriate unit?" As stated earlier, the Petitioner is seeking a unit comprised of basically all home teachers, while the Respondent alleges that the appropriate unit would be all residential and vocational employees of the Respondent providing direct programmatic services.

Section 48-838(2), R.R.S. Nebraska, provides as follows:

...The commission shall also determine the appropriate unit for bargaining and for voting in the election, and in making such determination, the commission shall consider established bargaining units and established policies of the employer. It shall be presumed, in the case of governmental subdivisions such as municipalities, counties, power districts or utility districts with no previous history of collective bargaining, that units of employees of less than departmental size shall not be appropriate.

This section of the Nebraska statutes was interpreted by the Nebraska Supreme Court in Sheldon Station Employees Association v. Nebraska Public Power District , 202 Neb. 391, 396, 275 N.W.2d 816, 819 (1979) wherein the Court said:

It is clear that in enacting Subsection (2) of Section 48-838, the legislature properly sought to avoid undue fragmentation of bargaining units... It (undue fragmentation) fosters proliferation of personnel necessary to bargain and administer contracts on both sides of the bargaining table. It destroys the ability of public institutions...to develop, administer, and maintain any semblance of uniformity or coordination in their employment policies and practices. Clearly, it is the intent of the legislature that fragmentation of bargaining units within the public sector is to be avoided....

We have held in the past that in tailoring the appropriate unit, we consider the mutuality of interest in wages, hours and working conditions (community of interest), duties, and skills of the employees, the extent of union organization among the employees, the policy against fragmentation of units, the established policies of the employer, and the statutory mandate to ensure proper functioning and operation of governmental service. AFSCME v. County of Douglas , 3 CIR 184 (1977).

The Supreme Court in Sheldon , supra , substantiated consideration of these factors and went on to expand by saying:

While it is true, these factors are to be considered, it is likewise true that they are not the only factors to be considered, nor must each such factor be given equal weight. the factors appropriate to a bargaining unit consideration and the weight to be given to each such factor must vary from case to case depending upon its particular applicability to the case.

Id . at 396, 275 N.W. 2d at 819.

From the evidence, it would appear that all of the programmatic staff (home teachers, residential associates, residential assistants, head residential assistants, home health assistants, program managers, and production managers) have a common community of interest. All are involved in some aspect of educating and habilitating the mentally retarded client. All work towards the same goal of assisting the client to achieve his or her highest possible degree of development, and this is generally accomplished by following the client's IPP, which was originally compiled by a group effort.

Although some of the ENCOR employees are hourly employees and some are salaried employees, the record would indicate that there is little actual difference in the compensation received by each of the programmatic staff. The benefits paid by ENHSA to all of ENCOR'S residential and programmatic employees are identical.

The record does not support a history of collective bargaining sufficient to overcome the mandate of Section 48-838(2).

Accordingly, we find the appropriate unit to be as follows: all residential and vocational employees of Eastern Nebraska Community Office of Retardation providing direct programmatic services to the mentally retarded, excluding supervisory services, clerical, and maintenance employees.

All judges assigned to the panel in this case join in the entry of these Findings and Order.

Entered February 20, 1985.