9 CIR 183 (1987)


ASSOCIATION, An Unincorporated |
Association, |
Petitioner, |
Unincorporated Association, and |
Political Subdivision of the |
State of Nebraska, |
Respondents. |


For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska 68508

For the Respondent: L. Bruce Wright

Cline, Williams, Wright,

Johnson & Oldfather

1900 FirsTier Bank Bldg.

Lincoln, Nebraska 68508

Before: Judges Kratz, Cullan and Cope


The Petitioner herein asks this Commission to amend the certified bargaining unit for the full-time faculty employees of Central Community College (CCC or College), hold an election among the faculty employees in that amended unit, and if a majority of them vote for representation by the Central Nebraska Education Association (CNEA), certify the CNEA as the exclusive collective bargaining agent for the amended unit, which would include only the faculty members at the Platte and Grand Island campuses of the CCC, and not the faculty members at the Hastings campus.

In its Answer, the Central Community College Education Association (CCCEA), the existing bargaining unit representative, denies Petitioner's claim that it is no longer interested in representing the faculty members employed at the Platte and Grand Island campuses and prays that Petitioner's request for an amended bargaining unit be denied. The CCC filed an Answer and Motion for Summary Judgment. After hearing the arguments of the parties, we hereby grant the Motion for the reasons hereinafter discussed.

The history of this bargaining relationship is as follows:

1. The original election petition, filed in 1975 by the CNEA, asked for certification in a unit consisting of all full-time teaching employees of the College. At the hearing on this election petition, the parties stipulated that the appropriate bargaining unit was all full-time faculty members. There were, at that time, 33 full-time teachers on the Platte campus and 83 on the Hastings campus. There were no teaching faculty members at the Grand Island campus until a year later, 1976. As a result of this election, the CNEA was certified as the bargaining agent for the designated unit and it has negotiated with the College for this unit until 1985.

2. In 1985, the CCCEA filed a decertification petition and asked that it, instead of the CNEA, be certified as the bargaining representative for the faculty at CCC. This petition named the same bargaining unit, all full-time teaching employees at CCC, and the CNEA agreed with this designation. The CCCEA was successful in this election. Thus, in 1985, the CNEA was decertified and the CCCEA was certified.

3. There is no current collective bargaining agreement between the CCCEA and the college. The CCCEA's answer herein says the negotiations for a new agreement had been stalled because of breach of contract activities involving a faculty member on the Platte campus and faculty members on the Hastings campus, but an affidavit filed with the Motion for Summary Judgment indicates the negotiations have now resumed.

In its brief in support of its Motion for Summary Judgment, the CCC argues the CNEA is estopped from taking a position inconsistent with its previous position regarding the composition of the bargaining unit. The CNEA has, of course, admitted the propriety of the existing unit for 12 years. There is no claim that a change in facts or circumstances justifies a change in the bargaining unit. The parties agree there is still a community of interest among all full-time teaching employees of the College and this is not, of course, an action to decertify, which would be timely and proper.

There are 48 full-time faculty members on the Platte and Grand Island campuses and 44 of them have signed an authorization for the CNEA to represent them in collective bargaining. There are no authorizations from the faculty members on the Hastings campus and it seems clear from what facts we have that on part of the bargaining unit (Platte and Grand Island) wants to be represented by one organization and the other part (Hastings) by another organization. This type of situation is not unique in the history of collective bargaining. It happens frequently and the law authorizes and expects it. If the law provides that a majority of employees within an appropriate collective bargaining unit can choose the bargaining representative for all employees within that unit, 1


148-838(4), R.R.S., Nebr., 1943 and 29 U.S.C. 159(a).

then bargaining units will frequently include employees who do not want to be represented by the chosen representative of the majority. The framers of this majority rule bargaining system wisely concluded that it would be chaotic, and a disadvantage to the employee, to allow every employee, or group of employees, to have a different bargaining representative. 2


2See Majority Rule in Collective Bargaining, 45 Columbia Law Review 556 (1945) for discussion of the history of the enactment of the majority rule principal in the Wagner Act.

"The elimination of the economic evil of parallel and overlapping claims of rival unions directed against the same employer and involving the same employees was one of the prime objectives of the National Labor Relations Act. 29 U.S.C.A. 159(a). To achieve that objective the courts have formulated the exclusivity principle..." Kenin v. Warner Bros. Pictures, Inc., 188 F. Supp. 690 (1960).

So long as there is a community of interest among employees, they can be placed in the same bargaining unit even though a minority of them may want different representation than what is wanted by the majority. "The complete satisfaction of all who are represented is hardly to be expected." Ford Motor Co. v. Huffman, 345 U.S. 330 (1953). " A duly selected statutory representative is the representative of a shifting group of employees in an appropriate unit which includes not only those employees who approve such relationship, but also those who disapprove..." Kenin v. Warner Bros. Pictures, Inc., supra. To authorize a new and separate unit whenever members of the unit disapprove creates far more problems than it solves.

Referring to the section of the National Labor Relations Act (29 U.S.C. Section 159(a)) which is similar to the Nebraska Law (48-838(4)) and which authorizes representatives selected by the majority of the employees in an appropriate unit to represent all the employees in that unit, the courts have held as follows: (1) The fundamental purpose of this subchapter is to secure to employees entitled to its protection the right to bargain collectively through representatives of their own choosing, and once a majority choice has been competently polled and authoritatively certified, such choice should not be avoided, NLRB v. Sun Shipbuilding and Dry Dock Co., 135 F. 2d 15 (1943); (2) the statutory duty to deal only with the collective bargaining representative chosen by the majority is strong, but the duty not to deal with one having only minority support is no less stringent, Gypsum Co. v. United Steelworkers of America, AFL-CIO, 384 F. 2d 38 (1968); (3) Where a majority of employees were represented by a certain union, and all parties agreed that employers operations made it subject to the provisions of subchapter 9(a), the employer could not negotiate with another union, Isolantite, Inc. v. United Electrical Radio and Machine Workers of America, 22 A. 2d 796 (1941); and (4) an employer is prohibited from bargaining with anybody except the representative selected by the majority of the employees, International Union, United Auto, Aerospace and Agr. Implement Workers of America (UAW) v. NLRB, 394 F. 2d 757 (1968).

While the separate campuses create somewhat of an employee dividing line in the instant case, petitioner has not claimed that this separation creates a different community of interest and if you can separate employees who have the same community of interest by campus, you can, of course, separate the Platte campus from the Grand Island campus and have three bargaining units, or worse than that, you can separate the auto mechanics from the electricians, the english department from the history department, and so forth. This type of separation within a bargaining unit causes undue fragmentation, which is prohibited by Section 48-838(2) of the Nebraska statutes. House Officers Assn. v. University of Nebraska Medical Center, 198 Neb. 697, 255 N.W.2d 258 (1977).

In the case of Sheldon Station Employees Association v. Nebraska Public Power District, 202 Neb. 391, 275 N.W.2d 816 (1979), the Nebraska Supreme Court held that the Sheldon Station, one of five separately located stations within the Nebraska Public Power District system, was not an appropriate unit for collective bargaining because separating Sheldon from the other stations would cause undue fragmentation. If the Sheldon station could be a separate unit, then the court "would be compelled to recognize" the Scottsbluff station, Ogallala station, North Platte station, and Spencer station as appropriate bargaining units, and "such a decision would (not) be in keeping with the...intent of the Legislature to prevent undue fragmentation."

In Retail and Professional Employees, Local 1015 v. Kearney Center, 3 CIR 400 (1978), the CIR held the Youth Development Center at Kearney, Nebraska, was not an authorized bargaining unit within the Department of Correctional Services, and in IBEW v. State, 3 CIR 23 (1975), the CIR denied a request for separate units of production personnel and emergency personnel because "fragmented units interfere with the continuous operational efficiency of governmental services." While the afore-described cases did not involve an attempt to sever from an existing unit, the result is the same-undue fragmentation-and the Nebraska Supreme Court has said:

"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." House Officers Assn. v. University of Nebraska Medical Center, supra.

The College, in its Motion for Summary Judgment, asks that the case be dismissed because the CNEA is estopped from changing this established and admitted bargaining unit and because there is no basis in statutory law or the Rules of the Commission for this procedure. Petitioner, in its Petition, says this procedure can be accomplished under Commission Rules 10, 11 & 12, but we don't find any basis in those rules for severence from an existing unit. 3


3The National Labor Relations act allows for severence of craft units (29 U.S.C. 15999(b)(2). There is no such provision in the Court of Industrial Relations act and even if there was, it wouldn't apply here because "the Board does not propose to allow petitioners seeking severence to use this concept as a basis for establishing extent of organization units or for fragmentizing plant wide units into departments whenever craft severence cannot be established. - American Potash & Chemical Corps., 107 NLRB 1418.

The College also claims the proposed amended bargaining unit is inappropriate because if "flies directly in the face of the statutory policy against undue framentation in the public sector" and, for the reasons heretofore given, we agree.

The final consideration in this matter is whether this Commission can issue a summary judgment. It never has. In MAT v. Transport Workers Union of America, Local No. 223, et. al., 3 CIR 144 (1976), this Commission (then Court) held a petition, demonstrated to contain no justiciable issue, may be dismissed without a hearing on the merits. That case can apply here as we have concluded there is no justiciable issue. We see no basis, however, for avoiding the issuing of a summary judgment. The Petitioner does not contend that this remedy is unavailable. Section 48-812 R.R.S. 1943, Nebr., says "...proceedings before the Commission shall conform to the Code of Civil Procedure applicable in the district courts of the state..." and Section 25-1330, R.R.S. 1943, Nebr., authorizes district courts to issue summary judgments.

The motion is granted and the case is dismissed.

Entered June 23, 1987.