March 7, 1986, No. 84-643
Commission of Industrial Relations: Appeal
and Error. The review of a decision of the Commission of Industrial Relations is
restricted to considering whether the decision is supported by substantial
evidence, whether the commission acted within the scope of its statutory
authority, and whether its action was arbitrary, capricious, or unreasonable.
Appeal from the
Herbert M. Fitle, Omaha City Attorney, and
Kent N. Whinnery, for appellant.
Bruce G. Mason of Ross & Mason, P.C., for
KRIVOSHA, C.J., BOSLAUGH, HASTINGS, CAPORALE,
SHANAHAN, and GRANT, JJ., and COLWELL, D.J., Retired.
COLWELL, D.J., Retired.
follows a decision of the Commission of Industrial Relations (CIR) denying the
petition of the City of
Central to the
appeal is a brief review of Neb. Rev.
Stat. § 48-816 (Reissue 1984). It
was amended in 1969 to authorize public employers to recognize employee
organizations, to negotiate collectively, and to enter into written agreements
with them. In City of Grand Island v. American Federation of S. C. & M.
Employees, 186 Neb. 711, 185 N.W.2d 860 (1971), this court set aside the
CIR's determination that the captains and lieutenants of the Grand Island fire
division should be included in the same bargaining unit as the rest of the
firefighters. The rationale behind the decision was that the captains' and
lieutenants' duties were supervisory in nature, thus different from the duties
of the firefighters.
In 1972 the
Legislature responded to that decision with this amendment to § 48-816 (Cum.
All firemen and policemen employed in the fire department or police department
of any municipal corporation in a position or classification subordinate to the
chief of the department and his immediate assistant or assistants holding
authority subordinate only to the chief, shall be presumed to have a community
of interest and may be included in a single negotiating unit represented by an
employee organization for the purposes of this act. Public employers shall be
required to recognize an employee's negotiating unit composed of firemen and
policemen holding positions or classifications subordinate to the chief of the
fire department or police department and his immediate assistant or assistants
holding authority subordinate only to the chief when such negotiating unit is
designated or elected by employees in the unit.
constitutionality of the amendment was approved in Local Union No. 647 v.
City of Grand Island, 196 Neb. 693, 244 N.W.2d 515 (1976), holding that
because of the different and unusual duty circumstances of firefighters and
police officers, it was lawful to classify them differently from other public
here arose when defendant refused to remove police captains from its membership
after all captains had made such a request. Plaintiff contended that this was in
violation of an agreement with defendant. Defendant denied such an agreement and
further contends that removal of police captains was not a recognized proposal
for their ongoing contract negotiations.
The review of
a decision of the CIR is restricted to considering 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. American Assn. of University Professors v. Board of Regents,
198 Neb. 243, 253 N.W.2d 1 (1977); IBEW Local 1536 v. City of
In denying the
petition the CIR found that, although there had been some change in the duties
of the captains, the job descriptions and functions had remained essentially the
same, and the evidence was insufficient to rebut the legislative policy
mandating the inclusion of the captains in the unit.
claims three errors: (1) The CIR erred in finding that the evidence failed to
establish that there was an agreement between the city and the union to the
effect that if all captains requested withdrawal from the bargaining unit, the
union would allow them to do so; (2) The CIR erred in finding that the police
captains had been subjected to pressure to withdraw from the bargaining unit;
and (3) The CIR erred in finding that the evidence presented was not sufficient
to overcome the statutory presumption of the existence of a community of
interest between the police captains and all subordinate officers.
In April of
meeting was held on November 7, 1983. No proposals were presented by either
party concerning the withdrawal of the captains, and the minutes do not show any
discussion on the subject. On December 23, 1983, the city requested the union to
remove the captains. On December 28, 1983, the captains, in writing, requested
information from the city on whether unanimous consent was required, whether
they would have a voice in the removal, if January 1, 1984, was a deadline, and
whether a letter to the union signed by all captains would be sufficient. On
December 30, 1983, all of the captains, by letter, requested their removal from
the union. On January 6, 1984, the matter came to a head when the union refused
removal. The city claimed an agreement with the union for removal of captains if
all captains agreed; the union countered that there was no such agreement and,
further, that it was a procedural matter, being a proposal outside of those
items presented for negotiation at their November 7, 1983, meeting. The city
then filed its petition with the CIR.
first assigned error, both parties agree that there was no written agreement,
memorandum, or information supporting the city's claim. Some witnesses attending
the September 23 meeting testified that it was their understanding that there
was an agreement, although no specific contractual details were given. The city
describes this understanding as a consensus that an agreement existed. At this
meeting the representatives of both the city and the union were not in
continuous attendance. Until December 30 the removal intentions of all captains
were tentative and conditional. Although the parties continued to discuss the
captains' removal after September 23, the city made no effort to secure from the
union a firm commitment to the removal terms; the city's explanation that a
formal agreement was unnecessary, since the parties had already mutually agreed,
is not supported in the evidence. The silent minutes of the November 7 meeting
support the union's claim of no agreement. There was substantial evidence
supporting the CIR's finding of no agreement.
error relates to two areas. (1) A tentative plan suggested by the chief of
police that captains and lieutenants be assigned police cars on a 24-hour loan
basis to decrease response time, increase availability, and improve community
relations. The plan was known to the police staff; however, it was never
implemented. (2) The April 1983 assignment of parking stalls in the police
garage to captains for their personal cars. The chief explained that this was a
privilege that enhanced captains' leadership and ability to discharge discipline
duties. This evidence supports the CIR's finding.
final claimed error is an attempt to use Local Union No. 647 v. City of Grand
Island, 196 Neb. 693, 244 N.W.2d 515 (1976), as authority establishing
guidelines for rebutting the statutory presumption of a community of interest,
§ 48-816(3) (Cum. Supp. 1982), particularly referring to this language: They
are primarily responsible for the protection of life and property. They are on a
perpetual emergency basis. Their memberships are closely knit and in working
together their lives are often dependent on fellow members. A close kinship
between the members and their officers develops. This closeness and a
recognition of the elements mentioned promotes efficiency and a willingness to
work together. 196
First, that language related only to the special duty circumstances of
firefighters and police officers as a basis authorizing constitutional
classification of public employees, which was the only issue in that case. That
is not to say that evidence in those areas would not be relevant to the issue of
a presumption of community interest. Second, that argument is a return to the
"supervisor" argument in City of Grand Island v. American
Federation of S. C. & M. Employees, 186 Neb. 711, 185 N.W.2d 860 (1971),
which was later removed by the 1972 amendment, now § 48-816(3), with the
blessing of a presumption of a community of interest.
evidence emphasizes the supervisory character of the captains' duties, amounting
to a reworking of the City of
From a full
review of the record, the decision of the CIR was supported by substantial
evidence, and it was not arbitrary, capricious, or unreasonable.
participating on briefs.