AMERICAN
FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,
AFL-CIO,
LOCAL 2088, APPELLEE,
V.
v.
COUNTY OF
LANCASTER, NEBRASKA, DIVISION OF PUBLIC WELFARE, ET AL., APPELLEES, IMPLEADED
WITH STATE OF NEBRASKA, DEPARTMENT OF PUBLIC WELFARE, ET AL., APPELLANTS.
201
Filed
July 5, 1978.
1. Court of Industrial Relations: Labor and
Labor Relations. In determining what is an appropriate employee unit for the
purposes of collective bargaining, consideration may be given to the mutuality
of interest in wages, hours, and working conditions; the duties and skills of
the employees; the extent of union organization among the employees; and the
desires of the employees.
2. Legislature: Labor and Labor Relations. It
is the intent of the Legislature, and the policy of this court, that undue
fragmentation of bargaining units within the public sector is to be avoided.
3. Court of Industrial Relations: Labor and
Labor Relations: Statutes. The considerations set forth in section 48-838 (2),
R. S. Supp., 1976, in regard to collective bargaining units of employees, are
not exclusive; and the Court of Industrial Relations may consider additional
relevant factors in determining what bargaining unit of employees is
appropriate.
4. Court of Industrial Relations: Appeal and
Error: Evidence. Review by this court of orders and decisions of the Court of
Industrial Relations is restricted to considering whether the order of that
court is supported by substantial evidence justifying the order made, whether it
acted within the scope of its statutory authority, and whether its action was
arbitrary, capricious, or unreasonable.
Appeal from the
Paul L. Douglas, Attorney General, and John
R. Thompson, for appellants.
John B. Ashford of Bradford & Coenen, for appellee American Fed. of S., C.
M. Emp. AFL-CIO.
Heard before WHITE, C. J., SPENCER, BOSLAUGH,
MCCOWN, CLINTON, BRODKEY, and WHITE, JJ.
MCCOWN, J.
The American
Federation of State, County and Municipal Employees, AFL-CIO Local No. 2088,
hereafter called the union, brought two actions, one against
The Court of
Industrial Relations determined that the appropriate bargaining unit consisted
of a single county-level unit in each county, excluding certain supervisory
employees. The court found that there had been a proper showing of interest in
only four counties, Douglas, Lancaster, Sarpy, and Scotts Bluff, and ordered an
election to be held in each of those counties. None of those four counties have
appealed. The State Department of Public Welfare and the county divisions of
public welfare for 41 of the 93 counties have appealed.
Some
preliminary explanatory facts are advisable. The union was voluntarily
recognized by
The facts here
are virtually undisputed. The State Department of Public Welfare and the
respective county divisions of public welfare of this state are engaged in a
cooperative effort to provide welfare services. The welfare services include the
administration of federally funded programs, such as aid to the blind and
disabled, families with dependent children, and to the aged. The record also
reflects that some counties have additional welfare programs which have been
initiated and are operated independently by the counties.
The State
Department of Public Welfare has approximately 500 employees working in the
central office of the State Public Welfare Department, the Nebraska Center for
Children and Youth, and the six regional offices throughout the state. These
offices are all separate from the various county welfare offices. With some
exceptions, the state employees in these offices supervise the administration of
the welfare programs and train county employees. Neither the State nor the union
now contend that these state level employees should be made a part of the
bargaining unit of any county-level unit.
There are
slightly more than 1,300 county division welfare employees jointly employed by
the state and the respective counties who are engaged in providing welfare
services at the county level. These employees are subject to the state merit
system. The state has established a system of job classifications for welfare
workers. A series of 11 pay steps have also been established. Each county
selects a series of any six consecutive steps for its welfare employees'
compensation plan. The counties can, and in many cases do, choose to pay higher
wages than those authorized by the state plan, but if they do, they are not
reimbursed by the state for that additional compensation.
The job
classification plan on the state level divides the counties into four classes
based upon population and caseload.
Each
individual county exercises independent control over most aspects of the county
division of welfare operations. Although all the county-level welfare employees
are subject to the state merit system, each individual county has its own
grievance procedures. Not all grievances an employee might have are subject to
the state system. Evaluations of employee job performance are made at the county
level by the supervisor or county director. County officials make the decision
as to whether an employee should be promoted or whether a probationary employee
should be retained. So long as a previously funded position is available, the
state does not have the authority to pass on promotions. Similarly, a lateral
movement within the county department does not require state approval.
The State
Department of Public Welfare cannot order the transfer of an employee from one
county to another, nor order any county division director to accept any employee
from the state or from any other county, and there is little or no interchange
of employees from county to county.
Conditions of
employment for welfare employees can and do differ from county to county. Each
individual county establishes its own annual and sick leave policies, office
hours, pay periods, and schedule of holidays observed. Each county establishes
its own rules for vehicle use, office attire, and office closings.
On the basis
of the foregoing evidence the Court of Industrial Relations determined that the
"working" level for county division welfare employees is basically in
the 93 individual county divisions of public welfare, rather than in the State
Department of Public Welfare, and that the state agency is primarily a
supervisory agency, monitoring the administration of the several welfare
programs. The court concluded that a single statewide unit would be
inappropriate. The court then established separate county-level bargaining units
as the appropriate bargaining units, and ordered an election to be held in each
of four counties, Douglas, Lancaster, Sarpy, and Scotts Bluff, the only counties
in which there had been a sufficient showing of union interest.
The issue on
this appeal is whether the appropriate bargaining unit for county-level welfare
employees, jointly employed by the state and the respective counties, should be
a single statewide unit or should be a single county-level unit in each county.
In City of
In Cornell
University, 183 NLRB 329 (1970), the National Labor Relations Board said:
"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 of skills or functions of the employees, and
geographical location of the facilities in relation to each other." This
court quoted and adopted that language in American Assn. of University
Professors v. Board of Regents, 198 Neb. 243, 253 N. W. 2d 1, and said: "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."
The State
contends that the establishment of separate county-level units rather than a
single statewide unit constitutes a fragmentation of bargaining units in
violation of section 48-838 (2), R. S. Supp., 1976. Clearly it is the intent of
the Legislature, and the policy of this court, that undue fragmentation of
bargaining units within the public sector is to be avoided. The considerations
set forth in section 48-838 (2), R. S. Supp., 1976, in regard to collective
bargaining units of employees, are not exclusive; and the Court of Industrial
Relations may consider additional relevant factors in determining what
bargaining unit of employees is appropriate. See American Assn. of University
Professors v. Board of Regents, supra.
The evidence
in the case now before us fully supports the finding of the Court of Industrial
Relations that a single statewide bargaining unit of county-level welfare
employees would be inappropriate, and that there is little or no community of
interest among the county-level welfare employees in the 93 separate counties
sufficiently strong to warrant their inclusion in such a single unit. Prior
union bargaining history has been established only at the county unit level, and
whether successful or not, in only a very few counties. There is no prior
statewide bargaining history for county-level welfare employees. There is little
or no interchange of employees between counties or between the state and a
county. Each county operates its welfare program independently of the program of
any other county, and, except for the coordinating supervision of the State
Department of Public Welfare, each county is virtually autonomous.
Urban and
rural differences between individual counties are obvious and are pointed up by
the differences in numbers of employees, differences in job classifications and
functions, and the overlapping of functions and classifications in many rural
areas. The evidence is persuasive that the "working" level for
county-level welfare employees rests basically in
Review by this
court of orders and decisions of the Court of Industrial Relations is restricted
to considering whether the order of that court is supported by substantial
evidence justifying the order made, whether it acted within the scope of its
statutory authority, and whether its action was arbitrary, capricious, or
unreasonable. American Assn. of University Professors v. Board of Regents,
supra; House Officers Assn. v. University of Nebraska Medical Center,
198 Neb. 697, 255 N. W. 2d 258.
The decision
and orders of the Court of Industrial Relations in these cases are supported by
substantial evidence justifying the orders made, and its action was not
arbitrary, capricious, or unreasonable. The judgment is affirmed.
AFFIRMED.
SPENCER, J.,
dissenting.
I respectfully
dissent from the majority opinion herein because I believe that sections 48-801
et seq., R. R. S. 1943, are unconstitutional for the reasons I set out in full
in my dissent in American Fed. of S., C. & M. Emp. v. State, 200
I further
dissent because of the undue fragmentation permitted by the majority opinion.
There is no merit in the contention that there are real differences among the
employees of the several county divisions of public welfare as to pay and other
working conditions. The rules and regulations of the State Department of Public
Welfare and the statutes of