PAPILLION/LAVISTA SCHOOLS PRINCIPALS AND SUPERVISORS
ORGANIZATION (PLPSO), APPELLEE,
v.
PAPILLION/LAVISTA SCHOOL
DISTRICT,
5
Filed November 12, 1996. No. A-95-621.
I. Commission of Industrial Relations: Appeal
and Error. In reviewing a decision of the Nebraska Commission of Industrial
Relations, an appellate court will consider whether the decision is supported
by substantial evidence, whether the Commission of Industrial Relations acted
within the scope of its statutory authority, and whether its action was
arbitrary, capricious, or unreasonable.
2. Commission or Industrial Relations: Labor and
Labor Relations: Appeal and Error. In the jurisprudence of Commission of Industrial
Relations appeals pertaining to bargaining unit determinations, it is clear
that each case must be decided on its own facts.
3. Labor and Labor Relations. The factors
appropriate to a bargaining unit consideration and the weight to be given each
such factor must vary from case to case depending upon its particular
applicability in each case.
4. Commission or Industrial Relations: Appeal
and Error. In considering a Commission of Industrial Relations appeal, it is
not for an appellate court to resolve conflicts in the evidence. Credibility of
witnesses and the weight to be given their testimony are for the
administrative agency as the trier of fact.
5. Statutes.
The words of a statute shall be given their plain, ordinary meaning.
6. Commission of Industrial Relations: Labor and
Labor and Relations. Except as provided in Neb. Rev. Stat. § 48-816(3)(b) and (c) Reissue 1993), a supervisor may be in the same
bargaining unit with another supervisor, and a supervisor may not be in the
same bargaining unit as an employee who is not a supervisor.
7. ____: ____. Neb. Rev. Stat. §
48-816(3)(a) (Reissue 1993) comports with case law
which permits supervisors to belong to the same bargaining unit.
8. Labor and Labor Relations. Case law disfavors
bargaining units composed of supervisors and rank and file workers.
9. ____. The
10.Labor and Labor Relations: Public officers and Employees:
Legislature: Intent. It is the intent of
the Legislature that fragmentation of bargaining units within the public sector
is to be avoided.
11. Labor and Labor
Relations. It has long been held that a basic inquiry in bargaining unit
determinations is whether a community of interest exists among the employees which is sufficiently strong to warrant their inclusion in a
single unit.
12.____. The Nebraska Supreme Court has determined that
decisions of the National Labor Relations Board with respect to appropriate bargaining
units are helpful.
13.____. Factors to be considered in determining the
appropriate bargaining unit include mutuality of interest in wages, hours, and
working conditions; the duties and skills of the employees; and the extent of
union organization among the employees.
14.Commission of Industrial Relations: Labor and Labor
Relations: Teacher Contracts. The Nebraska Teachers' Professional Negotiations
Act was repealed by 1987 Neb. Laws, L.B. 524, thereby placing teacher
collective bargaining under the Industrial Relations Act.
15.Labor and Labor Relations: Schools and
16.Labor and Labor Relations: Public Officers and Employees.
Nebraska law avoids undue fragmentation of bargaining units within the public
sector.
Appeal from the
Nebraska Commission of Industrial Relations. Affirmed.
Kelley
Baker and Jerry L. Pigsley, of Harding & Ogborn, for appellant.
Robert
E. O'Connor, Jr., for appellee.
MILLER-LERMAN,
Chief Judge, and HANNON and MUES, Judges.
MILLER-LERMAN,
Chief Judge.
Papillion/LaVista School District, School
District No. 27 (District), appeals the April 18, 1995, “Findings and
Order" of the Nebraska Commission of Industrial Relations (CIR), which
determined that the bargaining unit generally described as the Papillion/LaVista Schools Principals and Supervisors Organization
(PLPSO) was the appropriate bargaining unit for representation election
purposes for certain employees of the District. For the reasons recited below,
we affirm.
BACKGROUND AND FACTS
The PLPSO filed a petition with the CIR on September 28, 1994,
requesting, inter alia, that the PLPSO be certified
as the appropriate bargaining unit for employees in the unit. The PLPSO
produced 23 out of a potential 26 or 27 authorization cards of members of the
proposed bargaining unit authorizing the PLPSO to represent them.
Following the filing of an answer denying the allegations in the
petition, a hearing was conducted on January 25, 1995, at which five witnesses
testified and 23 exhibits were received in evidence. The witnesses in favor of
the PLPSO as the appropriate bargaining unit were an elementary school
principal, a high school assistant principal, and a junior high school
principal. The witnesses called by the District were the assistant superintendent
for personnel of the District and the superintendent of the District. The exhibits
included the "Constitution and By Laws" of the PLPSO, an
administrator salary schedule, an organizational chart, a list of central
office administrators, numerous job descriptions, administrator evaluation and
evaluation indicator forms, an administrator performance appraisal, a list of
administrators, and a letter dated March 2, 1994, from the president of the
board of education to the president of the PLPSO regarding proceeding with
1994-95 salary discussions.
On April 18, 1995, findings were made by the CIR. As to some of these
findings, the District either disputes their accuracy or challenges their
legal significance. The following findings were made by the CIR: The PLPSO is
composed of principals, assistant principals, and directors of programs in the
District. The PLPSO has been organized since at least 1982. There was a
predecessor organization to the PLPSO. The predecessor
organization adopted by laws in the early 1970's. The PLPSO or its
predecessor "has existed for over twenty years." The PLPSO
"worked through the central office administration, and on occasion even
met directly with the Board, to negotiate informally wages, salary schedules,
length of contracts, and other working conditions."
The CIR decision listed the job titles of the members of the proposed
bargaining unit, the majority of whom were principals
or assistant principals. The CIR order noted that the PLPSO and the District
"stipulated that all of these employees have supervisory duties to
varying degrees. All of these supervisory employees are state certified
administrators and have at least a Master's Degree."
The CIR found that the individuals in the group use a "'team
approach'" to administrative duties and that the power in the group is
diffused in a "collegial educational environment." The CIR defined
the central office administration as generally composed of the superintendent
and assistant superintendents of varying descriptions.
The CIR found as follows:
All school principals and the Library/Media Coordinator report to the
Superintendent of Schools through the Assistant Superintendent of Personnel.
The assistant principals report to their respective school principals. The
Director of Special Services and the Challenge Coordinator report to the
Assistant Superintendent for Curriculum and Instruction. The Special Services
Coordinator and the English as a Second Language Project Director report to the
Director of Special Services. The Director of Business Operations reports to the
Assistant Superintendent for Business Services.
Performance evaluations are generally conducted on the supervisory
employees by the person to whom they report. Principals are required to conduct
performance evaluations on their respective assistant school principals. These
evaluations may contain recommendations with respect to continued employment.
These evaluations will also be used in the future as one of three equally
weighted components for the distribution of merit pay.
None of the supervisory employees for at least the
past six years has been recommended for termination of employment. Decisions on
employment continuation or termination are ultimately made by the Board.
Although principals have general supervisory authority over assistant principals,
the collaborative team approach is used. The principals do not generally
supervise the day-to-day work of their assistant principals. Instead, the
assistant principals generally confer with, and report to, the principals with
respect to specific problems that arise. The principals do not "micro
manage" their assistant principals, and to that extent, the assistant
principals are autonomous. Depending on the issue, the assistant principals
sometimes interact directly with the assistant superintendents.
The CIR evaluated the legal significance of the foregoing findings vis-a-vis the following factors: mutuality of interest in
wages, hours, and working conditions among PLPSO members; duties and skills of
employees within the PLPSO; extent of union organization and desires of
employees in the PLPSO, established policies of the employer; and the policy
against undue fragmentation of units in public employment.
The CIR concluded that the appropriate supervisory employee bargaining
unit should be as follows:
All school principals, and assistant school principals, the Director of
Special Services, the Special Services Coordinator, the English as a Second
Language Project Director, the Challenge Coordinator, the Library/Media
Coordinator, and the Director of Business Operations, all employed by the
Papillion/LaVista School District, School District
No.27.
In designating the foregoing as the appropriate bargaining unit, the CIR
noted that the Legislature has provided that supervisors may organize with other
supervisors for purposes of collective bargaining pursuant to Neb. Rev. Stat.
§ 48-816(3)(a) (Reissue 1993). In this regard, the CIR stated that the Nebraska
Legislature has even provided statutory presumptions that certain firefighter
and police officer supervisors shall have a community of interest with other
firefighter and police officer employees, and that school administrators
employed in a Class V school district shall have a community of interest with
teachers and other certificated employees for purposes of joining a single bargaining
unit. Neb. Rev. Stat. § 48-816(3)(b) and (c) (1993).
The CIR decision continues:
If
the Legislature does not believe that public sector supervisors having a
community of interest should have a right to organize for purposes of
collective bargaining, then it is the duty of the Legislature to enact
legislation to limit supervisors from organizing with other supervisors. This
Commission does not have the authority or power in deciding cases to attempt to
legislate such a statutory change.
Following the designation of the appropriate bargaining unit, an
election was conducted. Following the "Report of Election," and the
"Certification Order" certifying the PLPSO as the exclusive
collective bargaining agent for the bargaining unit identified in the April 18,
1995, order, the District appealed. See Neb. Rev. Stat. § 48-812 (Reissue
1993).
ASSIGNMENT OF ERROR
In its "Statement of Error and Issue on Appeal," the District
declared the following to be at issue: "Whether the Commission erred in
its determination of the appropriate employee bargaining unit." In its
appellate brief, the District states: "The Commission of Industrial
Relations erred in ordering that supervisors and the supervisory employees
whom they supervise be included in the same bargaining unit. The Commission's
order is contrary to law and is therefore arbitrary, capricious and
unreasonable."
STANDARD OF REVIEW
[I] The parties agree that the applicable
standard of review, as stated in
"In reviewing a decision of the CIR, this court
will consider whether the decision is supported by substantial evidence,
whether the CIR acted within the scope of its statutory authority, and whether
its action was arbitrary, capricious, or unreasonable." (Emphasis
[omitted].) Douglas Cty. Health
Dept. Emp. Assn. v. Douglas Cty.,
229
ANALYSIS
The District argues generally that the CIR order pertaining to the
appropriate bargaining unit is erroneous and that the CIR order is contrary to
law and is, therefore, arbitrary, capricious, and unreasonable. Specifically,
the District argues that Nebraska law prohibits the CIR-defined bargaining
unit, which the District describes as being composed of supervisors and the
people they supervise. The PLPSO responds that a community of interest exists
among the members of the PLPSO, that the CIR finding of the appropriate
bargaining unit is consistent with the bargaining units in the area of
education labor law, and that the bargaining unit, composed largely of
principals and assistant principals, is supported by the policy against undue
fragmentation of bargaining units in the area of public employment. We agree
with the PLPSO.
[2-4] At the outset, this court notes that in the jurisprudence of CIR
appeals pertaining to unit determinations, it is clear that each case must be
decided on its own facts. See Sheldon Station Employees Assn. v.
In claiming that the CIR erred, the District argues that the bargaining
unit identified in the April 18, 1995, order is improper under Nebraska law
because included in it are "the School District's Administrators [and]
Other Supervisors Whom They Supervise." Brief for
appellant at 14. The District refers this court to case law and §
48-816(3)(a). Section 48-816(3)(a)
states: "Except as provided in subdivisions (b) and (c) of this
subsection, a supervisor shall not be included in a single bargaining unit
with any other employee who is not a supervisor." Section 48-816(3)(b) pertains to fire and police department bargaining
units, and § 48-8 16(3)(c) pertains to Class V school district administrators.
In relevant part, § 48-816(3)(c) provides:
All administrators employed by a Class V school district shall be
presumed to have a community of interest and may join a single bargaining unit
composed otherwise of teachers and other certificated employees for purposes of
the Industrial Relations Act, except that the following administrators shall be
exempt: [superintendents, secretaries of the board of education, and others].
. . . In addition, all administrators employed by a Class V school district,
except the exempt administrators, may form a separate bargaining unit
represented either by the same bargaining agent for all collective-bargaining
purposes as the teachers and other certificated employees or by another
collective-bargaining agent of such administrators' choice.
[5-8] The words of a statute shall be given
their plain, ordinary meaning. Koterzina V. Copple Chevrolet, 249
The District argues that certain of the supervisors in the designated
bargaining unit, in general the assistant principals, the coordinator of
special services, and the director of English as a second language, are more
akin to supervisees or employees, who may not be in the same bargaining unit as
supervisors, such as principals and the director of special services. In connection
with this argument, the District emphasizes the portion of the record which
includes evidence that according to the assistant superintendent for personnel,
the principal is the "boss," and that the principal evaluates the
performance of the assistant principal in connection with merit pay. As a
complement to this argument, the District notes, and the record shows, that in
connection with taking days off from work, the assistant principals submit a
form to the principals and that when absent unexpectedly, the assistant
principals notify the principals.
The record shows that the assistant superintendent for personnel
testified that in connection with salaries, the District has worked with the
PLPSO informally and that apparently the salary issues were resolved through
this mechanism. However, she continued, were the principals and assistant
principals to be officially recognized in one group, there would be a potential
for conflict.
The PLPSO claims on appeal that the CIR determination of the appropriate
bargaining unit is legally sound and supported by the evidence. The PLPSO
argues that the record shows that there is a community of interest among the
individuals in the bargaining unit designated by the CIR, that case law
pertaining to educational settings supports the bargaining unit defined by the
CIR, and that the bargaining unit defined by the CIR comports with the policy
against undue fragmentation of bargaining units in the area of public
employment.
With regard to the community of interest, the PLPSQ refers to evidence
in the record to the effect that principals and assistant principals are paid
according to the same administrative salary scale based on negotiations in
which the principals and assistant principals had met with the board of
education in the early 1980's and that the principals and assistant principals
share from the same merit pay pool. According to the record, the PLPSO has met
with the board of education to discuss working conditions. Both high school
principals and assistant high school principals are on a 260-day contract. All
persons in the designated bargaining unit receive the same fringe benefits, and
all persons in the designated bargaining unit have a master's degree and an
administrator's license. There is evidence in the record that all persons in
the designated bargaining unit, as well as the teachers, treat the
superintendent as the "boss." Testimony indicates that the principals
and the assistant principals meet twice a month to deal with issues within the
school district. Both principals and assistant principals serve on committees
at the district level. A principal testified that he did not supervise the
assistant principals at the same school "on a daily basis:” A principal
and an assistant principal both testified that they did not see a problem being
in the same bargaining unit. The parties stipulated that in varying degrees,
the principals, the assistant principals, and the other individuals in the
proposed bargaining unit all have supervisory duties.
[9] The PLPSO refers the court to case law pertaining to the educational
setting including American Assn. of University Professors V. Board of
Regents, 203 Neb. 628, 279 N.W.2d 621 (1979), and American Assn. of
University Professors V. Board of Regents, 198 Neb. 243, 253 N.W.2d
1(1977). In the 1977 case, the Nebraska Supreme Court approved a bargaining
unit composed of department chairs and other faculty based in part on the
evidence of collegiality within the group in the educational setting. In this
regard, the Nebraska Supreme Court commented on the "spirit of
collegiality" found in the education environment.
[10] The PLPSO also refers this court to the cases which demonstrate a
public policy against undue fragmentation of bargaining units in the public
sector such as House Officers Assn. v. University
of Nebraska Medical Center, 198 Neb. 697, 255 N.W.2d 258 (1977), and Sheldon
Station Employees Assn. V. Nebraska P. P. Dist., 202 Neb. 391, 275 N.W.2d
816 (1979). See, also, § 48-838(2) (Reissue 1993). In Sheldon Station
Employees Assn., the Nebraska Supreme Court stated: "Clearly, it is
the intent of the Legislature that fragmentation of bargaining units within
the public sector is to be avoided." 202
We have reviewed the CIR order of unit determination and the record in accordance with the
standard of review recited above. The order evaluates the evidence in light of
the factors that are set forth in cases such as American Assn. of University Professors v. Board of Regents, 198
Neb. 243, 253 N.W.2d 1 (1977), and City
of Grand Island v. American Federation of S. C. & M. Employees, 186
Neb. 711, 185 N.W.2d 860 (1971), but not repeated in detail here. Our review of
the record shows that the factual conclusions of the order are supported by
substantial evidence.
The District does not quarrel directly with specific factual findings,
but seeks reversal based on the argument that the legal conclusions of the CIR
order are contrary to law and, therefore, are arbitrary, capricious, and
unreasonable. We do not agree.
There is a melange of legal principles
applicable to this case. Although conceding that supervisors and supervisory
employees are not absolutely prohibited from bargaining units, see, e.g. Nebraska
Assn. of Pub. Emp. v. Nebraska Game & Parks
Commission, 197 Neb. 178, 247 N.W.2d 449 (1976), the District urges this
court to reverse the CIR order primarily on the basis that supervisors and the
people they supervise should not be in the same bargaining unit. The District
relies heavily on Supervisory, Managerial, and Professional Employees
Bargaining Association V. City of Bellevue, 11 CIR 48 (1991). The proposition
in City of Bellevue that supervisors and supervisory employees whom
they supervise should not be in the same unit was specifically overruled by the
order in the instant case. Even if it were conceded that the assistant
principals are supervised in some measure by the principals, such characterization
would not necessarily require separate bargaining units.
[11-13] In American Assn. of University Professors V. Board of
Regents, 198 Neb. at 261-62, 253 N.W.2d at 11, the Nebraska Supreme Court
stated:
It
has long been held that a basic inquiry in unit determinations is whether a
community of interest exists among the employees which
is sufficiently strong to warrant their inclusion in a single unit. See Note,
59
In City of
In
determining whether a particular group of employees constitutes an appropriate unit
for bargaining where an employer operates a number of facilities, the Board
considers such factors as prior bargaining history, centralization of
management particularly in regard to labor relations, extent of employee
interchange, degree of interdependence or autonomy of the plants, differences
or similarities in skills and functions of the employees, and geographical
location of the facilities in relation to each other. The factors in Cornell
University were cited with approval in American Assn. of University
Professors V. Board of Regents, 198 Neb. 243, 253 N.W.2d 1(1977). See,
also, City of
The CIR order properly considered the many factors relevant to the
determination of an appropriate bargaining unit noted in the cases cited above.
The CIR thereafter concluded that there was a community of interest in the
proposed bargaining unit and that it was, therefore, appropriate. See, also, IBEW
Local 1536 V.
In its brief on appeal, the District refers this court to §
48-816(3)(c), quoted earlier in this opinion, which in its first sentence
provides a statutory presumption that administrators employed by a Class V
school district have a community of interest and permits administrators in a
Class V school district to join a bargaining
unit with teachers.
Elsewhere, § 48-8l6(3)(c) provides that such
administrators may form a separate bargaining unit represented either by the
teachers' bargaining agent or by a different bargaining agent. The parties
note that Omaha is the only Class V school district in Nebraska and that
Papillion/Lavista is a Class III school district. The
District claims that § 48-816(3)(c) is limited by its
language to a Class V school district and, therefore, that § 48-816(3)(c) prevents
a finding that a group of administrators in a Class III school district is or
may be an appropriate bargaining unit. We do not agree.
[14,15] The Nebraska Teachers' Professional Negotiations Act was
repealed by 1987 Neb. Laws, L.B. 524, thereby placing teacher collective
bargaining under the Industrial Relations Act, Neb. Rev. Stat. § 48-801 et seq.
(Reissue 1993). The following year, 1988 Neb. Laws, L.B. 942, was enacted,
specifically allowing a bargaining unit of administrators and teachers in a
Class V school district. This provision overcame CIR case law, to which
educators became subject in 1987, which disfavored bargaining units composed of
administrators and rank and file employees. To the extent there is ambiguity in
the statute, a review of the legislative history of L.B. 942 shows that administrators
and teachers in Omaha had organized together since 1917 and that § 48-816(3)(c)
was enacted to preserve that arrangement, notwithstanding the fact that the
teachers and administrators had become subject to the Industrial Relations Act
in 1987. Committee on Business and Labor Hearing, 90th Leg.,
2d Sess. 61-64 (Feb. 8, 1988). The fact that §
48-816(3)(c) additionally permits Class V school
district administrators to join with each other, instead of with teachers, in a
bargaining unit does not preclude a comparable outcome in the context of
litigation where the evidence shows a community of interest within a group of
administrators with varying degrees of supervisory duty in a Class III school
district.
The CIR made reference to case law in the educational setting in its
unit determination order. In American Assn. of University Professors V.
Board of Regents, 198 Neb. 243, 253 N.W.2d 1(1977), the finding of a
bargaining unit composed of both department chairs and faculty was affirmed. As
indicated elsewhere in this opinion, the Nebraska Supreme Court noted that
there existed a "spirit of collegiality" within this group.
[16] The CIR correctly noted in its order that
Because we find that there is substantial evidence to support the CIR
decision and we conclude that the CIR acted within its authority and that the
CIR action was not arbitrary, capricious, or unreasonable, we affirm.
AFFIRMED.