9 CIR 25 (1986), Appeal Dismissed March 25, 1987.


Political Subdivision, | 209
Petitioner, |
Unincorporated Association, |
Respondent. |


For the Petitioner: John F. Recknor

Barlow, Johnson, DeMars & Flodman

1227 Lincoln Mall

P.O. Box 81686

Lincoln, Nebraska 68501

For the Respondent: Mark D. McGuire

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska 68508

Before: Judges Kratz, Orr, and Mullin


In this case, the Petitioner asks the Commission to "clarify and amend the bargaining unit to separate teachers from nurses." The bargaining unit that Petitioner seeks to "clarify and amend" was certified by this Commission (then Court) on December 14, 1978,1 and it is described as follows:

All certified teachers, nurses and therapist, including special education teachers employed by Educational Service Unit No. 15 of the State of Nebraska, excluding artist in residence, administrative and supervisory employees and office clerical employees.

At the present time this unit consists of five speech pathologists and four nurses. Petitioner argues that the speech pathologists are teachers and that they, and other teachers,2 should be in a separate bargaining unit from the nurses. As a basis for this contention, Petitioner argues that "nurses and teachers are not the same thing" and this is illustrated by the fact that (1) nurses are defined differently than teachers in Section 79-101, Neb. Rev. Stat ., (2) teachers and nurses are issued different types of certificates by the Nebraska State Department of Education, and (3) the rules and regulations of the Nebraska State Department of Education do not allow nurses to teach. Petitioner also argues that nurses employed by hospitals and nursing homes are paid on a different basis (hours worked), and receive less compensation, than the nurses employed by the Plaintiff (salary schedule), and that because nurses under a salary schedule receive a higher wage than they would receive in a hospital or nursing home, this "works directly to the detriment of holders of teaching certificates."

These examples do illustrate that nurses are different than teachers and our general knowledge regarding the qualifications, skills and duties of these two vocations would also indicate that they are different. However, the nurses and speech pathologists at Educational Service Unit No. 15 (ESU #15) are not sufficiently different under the factual circumstances of this case to place them in a different bargaining unit. The test for membership in the same bargaining unit is whether the employees in that bargaining unit have a community of interest. The Nebraska Supreme Court has followed the National Labor Relations Board criteria for determining community of interest and an application of those criteria to the facts of this case requires that we leave the bargaining unit as it is.

In City of Grand Island v. American Federation of S.C. & M. Employees , 186 Neb. 711, 185 N.W. 2d 860, the Nebraska Supreme Court held that in determining what is an appropriate bargaining unit consideration should be given to mutuality of wages, hours and working conditions; the duties and skills of the employees; the extent of union organization among the employees' the amount of fragmentation that may occur if employees are taken out of the present bargaining unit; and the desires of the employees. The Supreme Court says these are only guidelines and the Commission should consider all factors when determining an appropriate bargaining unit. See also American Assn. of University Professors v. Board of Regents , 198 Neb. 243, 253 N.W. 2d 1 (1977); Sheldon Station Employees Assn. v. Nebraska Public Power District , 202 Neb. 391, 275 N.W. 2d 816 (1979); IBEW Local 1536 v. Lincoln Electric System , 215 Neb. 840, 341 N.W. 2d 340 (1983).

This Commission, in Nebraska State Council of Local Union No. 32, AFSCME v. County of Adams , 5 CIR 401 (1982), listed the following as relevant factors in determining membership in the bargaining unit:

Mutuality of Interest in wages, hours, and working conditions; duties and skills of the employees; desires of the employees; extent of unionization; prior bargaining history; centralization of management,particularly in regard to labor relations; extent of employee interchange; degree of interdependence of autonomy of the facilities; geographical location of the facilities in relation to each other; possibility of over fragmentation of bargaining units; and the insurance that there will be proper functioning and operation of governmental service.

The facts herein show that the wages, hours and working conditions of the nurses and the speech pathologists are the same. They all work 5 days a week, generally from 8:00 A.M. to 4:00 P.M. They work approximately 185 days a year, they are paid under the same salary schedule, they all travel to different school districts during the week, they receive the same mileage reimbursement, they receive the same insurance benefits, they have the same vacation schedule, they have the same supervisor, and they have the same leave policies. While a speech pathologist takes care of a student's speech problem and a nurse takes care of a student's health problem, and their duties and skills are therefore somewhat different, they nevertheless perform the same exact function:3 they provide a service to school districts in a specialized area that the existing faculty is unable to provide. A welder and a painter on an assembly line have different skills and duties, but they are part of the same interdependent process that ultimately produces some saleable product and they are members of the same collective bargaining unit.

With regard to the desires of the employee and the extent of unionization, the evidence shows all members of the existing bargaining unit (the five speech pathologists and four nurses) are members of the union (Respondent herein). Furthermore, the uncontradicted testimony shows the nurses and speech pathologists desire to continue together in the same bargaining unit.

Since 1978, when this unit was certified, the Respondent has regularly negotiated new agreements in behalf of the bargaining unit. This unit has, since the beginning, included both nurses and speech pathologists. Thus, the prior bargaining history favors a continuation of the existing bargaining unit.

For years, management (Petitioner) has negotiated the same terms and conditions for both the nurses and speech pathologists. Thus, to the extent that centralization of management with regard to labor relations is concerned, this factor also favors a continuation of the current bargaining unit.

The only other factor, from the Court and Commission decisions, that would be applicable to the instant case is the rule against fragmentation of the bargaining unit. To divide the current unit into two units could be an over fragmentation, and if there was a further division (a separate unit for the resource teachers), we would likely have a fragmentation which would interfere with the proper functioning and operation of governmental service.

Inasmuch as all the applicable relevant factors in determining the composition of the bargaining unit favor the inclusion of the nurses and speech pathologists in the same unit, we conclude that the petition herein should be dismissed.

The Petitioner relies on the case of Millard Education Assn. v. School District of Millard , supra, in behalf of his request for removal of the nurses from the bargaining unit. While this case was dismissed by the Supreme Court on jurisdiction grounds,4 it nevertheless includes some applicable conclusions regarding the community of interest between nurses and teachers. Our decision herein does not disagree with the conclusion reached in Millard regarding nurses and teachers. The Millard case does not involve nurses working for an Educational Service Unit (ESU).

The nurses in Millard are school nurses and they have definite differences in duties, wages and conditions from ESU nurses. Moreover, they perform a different function than the teachers with whom they are employed, while the speech therapists and the nurses in the instant case perform the same function.

The nurses in Millard "have no teaching duties, are not paid on the basis of a teacher's salary index schedule and have never been considered a part of the bargaining unit" (p. 456 & 457). In the instant case, the nurses have always been a part of the bargaining unit, and they are paid on the basis of a teacher's salary index schedule. While they have no teaching duties, their duties are nevertheless similar to the duties of the speech pathologists, who perhaps have no teaching duties either inasmuch as their services are rendered mostly on an individual basis outside of a classroom environment and are generally referred to as therapy rather than teaching.

Furthermore, the teachers in Millard are not like the teachers at ESU #15, whose duties and working conditions are described in Educational Service Unit No. 15 Education Assn. v. Educational Service Unit #15 of the State of Nebraska , 9 CIR 1 (1986), as follows:

"..The role of the ESU teacher varies substantially from that of the public school teacher. ESU teachers are called upon to provide special teaching skills in areas where the school district faculty does not have the necessary expertise. In many instances, the ESU teacher applies his/her specialized training on an individual basis to the school district pupil. A low teacher-pupil ratio is the norm, rather than the exception. Additionally, the services provided by ESU teachers are supplemental to the basic curriculums of the school districts they serve. They are based primarily on the unique needs of each district and may vary considerably from school to school.

"....ESU teachers are generally itinerant. Their work is not confined to a single classroom or school but encompasses a number of different schools in several school districts. Travel is inherent in their employment. Moreover, the daily schedule of the ESU teacher may vary during a single school week. An ESU teacher's day generally commences at the beginning hour of one school district and ends at the closing hour of another school district. Therefore, since most school districts' opening and closing schedules differ, each weekday can begin and end at a different time. In some instances, two time zones may be encountered in a single school day. That is, a teacher may commence the day in Benkleman under Mountain Standard Time and finish the day in McCook under Central Standard Time. Since their services are provided on an "as needed" basis, the number of schools an ESU teacher serves may change from month to month and year to year. These working conditions are significantly different than the working conditions of the ordinary public school teacher."

Petitioner says Section 79-101 requires that nurses and teachers be placed in separate bargaining units. This statute confirms what we already know and have taken into consideration herein, a teacher instructs pupils and a nurse does not. But while nurses and teachers are generally different, the ESU #15 nurses and speech pathologists are not sufficiently different, when the applicable bargaining unit criteria are applied, to allow us to say that this very general statute is adequate ground for separating them into two separate bargaining units.

Also, the difference in certificates and the authority to teach is not significant when applied to the skills, conditions, duties, and function of the ESU #15 service employees. Although this difference in certificates shows that technically speech therapists can teach and nurses cannot, at ESU #15 they both do the same thing. They both provide specialized supplemental services to individuals or small groups of students at schools who contract with ESU #15 for those specialized services. We are not saying that nurses and teachers have a community of interest. Ordinarily they do not. We are simply saying that in ESU #15, the nurses and speech therapists have a community of interest. Because of the peculiar structure and function of ESU's, the nurses are not like ordinary nurses and the speech therapists are not like ordinary teachers. They have a community of interest with each other -- because of the similarity in their wages, hours, duties, working conditions, and functions -- which doesn't exist in the ordinary nurse-teacher comparison.

Entered September 11, 1986.

1 ESU #15 Education Association v. ESU #15 , 3 CIR 598 (1978).

2 Previously, the ESU #15 service staff included "resource teachers," as well as nurses and speech pathologists. The evidence indicates that resource teachers will likely be hired again in the near future.

3 In Millard Education Association v. School District of Millard , 5 CIR 447 (1982) (Dismissed by the Supreme Court on other grounds), one of the relevant factors for determining the appropriate bargaining unit was described as "differences or similarities...in function" and we consider that factor particularly applicable in the instant case.

4 Lincoln Education Assn. v. School District of Lincoln , 214 Neb. 895, 336 N.W. 2d 587 (1983).