SHELDON
STATION EMPLOYEES ASSOCIATION, APPELLEE,
V.
NEBRASKA
PUBLIC POWER DISTRICT, APPELLANT.
202
Filed
February 27, 1979. No. 41801.
1. Court of Industrial Relations: Labor and
Labor Relations: Employer and Employee. In attempting to determine the
appropriate unit for exclusive bargaining purposes under the provisions of the
Nebraska Court of Industrial Relations Act, the mutuality of interest in wages,
hours and working conditions, duties and skills of employees, extent of union
organization among employees, the desires of employees, a policy against
fragmentation of units, the established policies of the employees, and the
statutory mandate to insure proper functioning and operation of governmental
service, are to be considered. Those factors, however, 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 each
such factor must vary from case to case depending upon its particular
applicability in each case.
2. Statutes: Evidence: Labor and Labor
Relations: Public Officers and Employees. Before the statutory restrictions
prescribed by section 48-838 (2), R. S. Supp., 1976, against undue fragmentation
in the public employment area can be overcome, there must be strong evidence
justifying the need and propriety of such additional division.
3. Labor and Labor Relations: Public Officers
and Employees. The mere fact that a public employer voluntarily creates employee
committees, for the purpose of meeting and conferring about matters of mutual
interest between the public employer and the public employee, does not establish
that the public employer has recognized such units as the exclusive collective
bargaining agent.
Appeal from the Court of Industrial
Relations. Reversed and remanded with directions.
Barlow, Johnson, DeMars & Flodman, for
appellant.
Baylor, Evnen, Baylor, Curtiss & Grimit, for appellee.
Heard before KRIVOSHA, C. J., BOSLAUGH,
MCCOWN, CLINTON, BRODKEY, and WHITE, JJ., and SPENCER, Retired Justice.
KRIVOSHA, C. J.
Various
employees of the Nebraska Public Power District (District) employed at the
District's Sheldon Station, Hallam, Nebraska, petitioned the Nebraska Court of
Industrial Relations (CIR) to declare all persons, except supervisors, employed
by the District at the Sheldon Station, Hallam, Nebraska, and compensated at an
hourly wage, as the appropriate unit for purposes of exclusive representation
and bargaining with the District pursuant to the provisions of sections 48-801
to 48-838, R. R. S. 1943, as amended.
The District
answered denying the proposed group was the appropriate unit. After trial the
CIR entered its order finding in favor of the appellee and authorizing the
creation of an exclusive bargaining unit consisting of all hourly wage
nonmanagement personnel employed by the District at the Sheldon Station,
As required by
law, we have examined this matter on appeal to determine whether the order of
the CIR is supported by substantial evidence. House Officers Assn. v. University
of
The District
is a governmental subdivision created pursuant to the provisions of section
70-601, R. R. S. 1943, for the purpose of supplying electricity in
All matters of
general administration are handled at the general office including personnel,
finances, and labor relations. Although there is evidence indicating individual
stations were authorized to initiate employment applications and interview
prospective employees, the final decision concerning hiring was made by the
personnel office in
All
adjustments of employee benefits, salaries, or job descriptions are made on a
statewide basis. Such items are set out in an employee manual prepared by the
general office for use by all employees of the District, regardless of their
specific location. In addition, the evidence discloses that executive orders are
issued by the central office from time to time, establishing new personnel
policies applicable to all employees regardless of their place of employment.
While the
record does not disclose the total number of persons employed by the District,
the record does disclose that there were, at the time this matter was before the
CIR, at least 328 employees at eight specific generating locations. Employees
ranged in number from as many as 101 at the "Cooper Nuclear Station"
to as few as 6 at the "Spencer Hydro Station," with 77 being employed
by the District at the "Sheldon Station."
The record
further discloses that the District instituted what it called "employee
committees" to allow an interchange of information at the various power
plants themselves. Certain of the smaller power plants were assigned to regional
employee committees. It appears that the purpose of the meetings was to permit
management to "meet and confer" with the employees of the District to
discuss matters of mutual interest. None of the meetings have been for the
purpose of negotiating wages or other terms and conditions of employment. The
record indicates the topics discussed at these meetings did, to some extent,
pertain to the District's policy with regard to both wages and terms and
conditions of employment. In each instance, however, the meetings were for the
purpose of exchanging ideas and not for the purpose of negotiations. As a matter
of fact, the record discloses that on July 25, 1977, representatives of the
District came to a meeting of the Sheldon Station employees committee, believing
the purpose of the meeting to be similar to those that had been held in the
past, namely, to meet and to confer concerning various matters involving the
operation of the station and the employees. When the management representatives
arrived, they were advised by the employees committee and an attorney retained
by the committee, that the purpose of the meeting was to recognize the employees
committee as the exclusive bargaining agent for negotiating purposes.
Representatives of the District refused to remain at the meeting and thereafter
left.
There is no
evidence in the record to indicate the District at any time created or
recognized any employees committee as an exclusive bargaining agent, nor ever
met with them for the purpose of "negotiating" terms and conditions of
employment. The units were simply in-house committees created by a public
employer for the purpose of exchanging ideas and discussing with the employees
any problems which they were experiencing. It would appear that because of the
geographic locations of the various stations, it was more convenient for the
employees to have several representatives of the central office travel about the
state and meet with various employee committees, rather than have all the
employees congregate for a meeting at a central location. Nevertheless, employee
grievances were required to be taken back to the central management of the
District and discussed. If an adjustment was to be made, it had to be approved
by the board of directors of the District and then applied to all employees in
the District and not just to a particular station.
In its order
dated November 1, 1977, the CIR declared "it is settled law 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
employees, extent of union organization among employees, desires of the
employees, a policy against fragmentation of units, the established policies of
the employer, and the statutory mandate to assure proper functioning and
operation of governmental service."
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 each such factor must vary from case to case depending upon
its particular applicability in each case. City of
Likewise, in
reviewing factors such as "established policies of the employer,"
"fragmentation," and "degree of unionization-desires of
employees," we must keep in mind the clear dictates of the statutes. These
factors must be examined in light of the statutory presumption contained in
section 48-838 (2), R. S. Supp., 1976, which provides as follows: "* * * It
shall be presumed, in the case of governmental subdivisions such as
municipalities, counties, power districts, or utilities districts with no
previous history of collective bargaining, that units of employees of less than
departmental size shall not be appropriate."
In
interpreting that section, we have previously said: " 'It is clear that in
enacting subsection (2) of section 48-838, the Legislature properly sought to
avoid undue fragmentation of the 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.' " House Officers Assn. v. University of
In its order,
the CIR made specific findings with regard to the various relevant factors to be
considered. We now examine each of those findings.
The CIR found
that with regard to centralization of management and labor policy,
"Personnel actions are generally initiated at the local level, but are
forwarded to
With regard to
the extent of interchange of employees, the CIR found "* * * while precise
duties at each plant for a given job description may vary, that the duties are
sufficiently similar, that an employee in a given description could function
satisfactorily in the same job description at another plant with a minimum of
training." The evidence indicated that 26.9 percent of transfers, including
promotions, are from plant to plant. It would appear from the evidence, however,
that this is due in large part to the fact that a person at a particular site is
trained in advance for promotion at that site and not by reason of some
uniqueness of the particular plant. Again this finding of the CIR would appear
to require our finding this factor in the District's favor.
With regard to
similarity of skills, the CIR found that there was great similarity between the
various plants. The CIR's order did note that there were differences arising
from the fact that the Cooper Station is nuclear, and often has higher
compensation levels for the same job title. The evidence discloses this
difference is due to the facts that the Cooper Station is a nuclear station and
its employees require higher training and skill. Nevertheless, all of the
employees continue to operate within an overall statewide policy plan and
individuals at the same level of job classification are paid the same wage
throughout the District. On that basis, this factor must be found in the
District's favor.
As to the
factor of geographical location, the CIR found the plants and the transmission
and distribution facilities, while scattered across the State of
With regard to
uniformity of wages, benefits, and working conditions, the CIR found "The
District has attempted to equalize wages and benefits by setting up a
district-wide compensation plan." While it may be true that the employees
of the Sheldon Station do not perceive the plan as uniform, there is no evidence
to indicate that wages and benefits are not uniform throughout the District for
the same level of skills. As noted earlier, due to certain requirements imposed
by a regulatory agency, personnel at the Cooper Station have additional
training. As a result, they are sometimes paid at a higher wage level than
another individual at a different plant performing similar work. Generally,
however, within the same job classification, individuals at the same level are
paid the same throughout the District. The factor of uniformity of wages,
benefits, and working conditions must also be found in the District's favor.
With regard to
current governance of the District, the CIR found "The District has
ostensibly set up a highly centralized management. However, it is clear from the
evidence that day-to-day decisions on personnel matters are left largely to the
local managers." While it may be true that local supervisors have certain
day-to-day control, it must be kept in mind this is a public employer and not a
private employer. The governance of the District must be established by law and
not by the acts of its employees. The responsibility for the operation of the
District lies with the board of directors and those individuals to whom
authority has been delegated by the board. The record does not justify a
conclusion that local managers retain such authority concerning personnel
matters whereby it can be said the current governance of the District is vested
in each individual plant. This factor, likewise, must be found in the District's
favor.
As to the
factor of established policy of the employer, the CIR found in its order:
"The District, after demand for recognition by the plaintiff, announced
that it felt only a district-wide bargaining unit was appropriate. We have
previously noted its establishment of local committees, however." While the
specific order does not indicate to us how the CIR viewed that factor, it would
appear the CIR believed that the public employer had, by reason of establishing
local committees, thereby established a policy of recognizing individual units
for purposes of exclusive bargaining. The action of the public employer in that
regard, however, does not lead to the conclusion reached by the CIR. We do not
believe the establishment by the employer of local employee committees justifies
the conclusion that the employer has established a policy of creating individual
groups for collective bargaining purposes. Before the statutory restrictions
against undue fragmentation in the public employment area prescribed by section
48-838 (2), R. S. Supp., 1976, can be overcome, there must be strong evidence
justifying the need and propriety of such additional division.
The mere fact
that a public employer voluntarily creates employee committees, for the purpose
of meeting and conferring about matters of mutual interest between the public
employer and the public employees, does not establish that the public employer
has recognized such units as the exclusive collective bargaining agent. Whatever
may be the rule in the private sector because of provisions of the National
Labor Relations Act, that rule has no application in the public sector. To hold
otherwise would be to discourage, if not chill, the public employer's desire to
meet and confer with the employees in an open and meaningful interchange of
information as was done in the instant case. Such a result cannot possibly be in
the best interests of either the public employer or the public employees and
certainly is not in the best interests of the public who in the final analysis
is the employer of both. We find that the evidence in this case does not meet
the requirement to overcome the presumption against undue fragmentation and this
factor, likewise, must be found to be in the District's favor.
With regard to
the specific factor of fragmentation, we believe what we have said with regard
to established policies of the employer likewise applies to this factor. In two
recent cases we rejected the employees' desire for fragmentation holding that
such units were inappropriate. See American Fed. of S., C. & M. Emp. v.
State, 200 Neb. 171, 263 N. W. 2d 643; House Officers Assn. v. University of Nebraska
Medical Center, supra.
A reading of
recent decisions of the CIR would likewise lead one to the conclusion that the
unit requested in this case would clearly fall within the prohibition against
undue fragmentation. In the case of Retail and Prof. Employees, Local 1015 v.
Kearney Center, 3 CIR 400, the CIR denied the petition of the union, requesting
the CIR to find that all persons employed at the Youth Development Center at
Kearney, Nebraska, except supervisory employees, constituted an appropriate
bargaining unit within the Department of Correctional Services. While the CIR
attempted to distinguish that case from the instant case, such distinction
fails.
Likewise, in
the case of International Brotherhood of Electrical Workers v. State, 3 CIR 23,
the CIR denied the request by the IBEW for the creation of two units, one
consisting principally of production personnel and the other of engineering
personnel. In doing so, the CIR there said: "The public policy provisions
of the Court of Industrial Relations Act (Section 48-802) require this Court to
insure the continuous operational efficiency of governmental services.
Fragmented units interfere with the continuous operational efficiency of
governmental services and should, therefore, be avoided to the extent that it is
possible consistent with the preservation of the rights of public sector
employees to engage in collective bargaining * * *.
"We
conclude that the limited units requested by Petitioner herein are not
appropriate. We base our decision on the public policy against fragmented units,
the object and purpose of LB 1228 to avoid fragmented units, application of the
specific statutory criteria of Section 48-838, and application of the criteria
established by the Nebraska Supreme Court in the City of
The logic of
the IBEW decision, supra, as expressed by the CIR, would appear to apply with
equal validity to the case now before us, and we must, therefore, on the issue
of "fragmentation," find in the District's favor.
The last
remaining factor for consideration is the degree of unionization, the desires of
employees. The CIR found "The only organizational effort currently under
way is the one now before this Court. There is no evidence of any other present
organizational activity among any of the defendant's employees." We are
unable to see how this finding could in any manner justify the creation of a
separate unit at the Sheldon Station.
The desires of
a group of employees standing alone may be of importance to the employer in the
manner in which the employer reacts to the employees, but cannot be of legal
significance. The statutes clearly provide that before the court can even order
an election, it must determine that at least 30 percent of the employees in an
appropriate unit have requested in writing that it hold such an election. The
CIR may only certify an exclusive bargaining unit if the majority of the
employees voting in the requested election vote for the proposed agent. §
48-838, R. S. Supp., 1976. The question, therefore, is not whether some employee
at some particular location desires exclusive representation, but whether at
least 30 percent of an appropriate unit have properly evidenced that desire. The
CIR in its finding in no way gives any indication how or in what manner the
desires of the employees of the Sheldon Station were of legal significance in
determining the appropriateness of the unit. If an appropriate unit can be
fashioned by simply encompassing those who evidence a desire, then the entire
dictates of section 48-838, R. S. Supp., 1976, can be effectively defeated. It
must be kept in mind that under the provisions of our public law, employees have
not only a right to organize and be represented, but likewise have a right not
to be organized and be represented. § 48-837, R. R. S. 1943. If both of these
prevailing rights are to be maintained in proper balance, then the requirements
of section 48-838, R. S. Supp., 1976, with regard to appropriate units, must
likewise be maintained in balance.
If the
rationale of the CIR is correct with regard to the Sheldon Station, then of
necessity this court would be compelled to recognize, as an appropriate
bargaining unit, the Scottsbluff Station with 28 employees, the Ogallala Station
with 15 employees, the North Platte Station with 7 employees, and the Spencer
Station with 6 employees. We cannot believe that such a decision would be in
keeping with the dictates of the law nor with the intent of the Legislature to
prevent undue fragmentation. Adding the factors in their various columns, we
find that there are no factors which can be found in favor of recognizing the
Sheldon Station as an appropriate unit, and that, therefore, the order of the
CIR is not sustained by substantial evidence. We therefore reverse the order of
the CIR with directions to dismiss the petition of the Sheldon Station Employees
Association.
REVERSED AND REMANDED WITH DIRECTIONS.
BOSLAUGH and
BRODKEY, JJ., concur in result.