INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 244, APPELLANT
V.
222
Filed
April 25, 1986, No. 85-004
1. Commission of Industrial Relations: Appeal
and Error. In reviewing a decision of the Commission of Industrial Relations,
this court will consider 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.
2. Administrative Law: Evidence: Witnesses:
Appeal and Error. It is not for the Supreme Court to resolve conflicts in the
evidence. Credibility of witnesses and the weight to be given their testimony
are for the administrative agency as a trier of fact.
3. Labor and Labor Relations: Employer and
Employee. Supervisory personnel cannot be represented in the same bargaining
unit with rank and file employees.
4. ______: ______. Supervisory or managerial
personnel may not retain the same bargaining agent as the employees' union
because that would be tantamount to permitting them to enter the same bargaining
unit.
5. ______: ______. The mere fact that each
local union can be traced back to a common international union will not be
enough to show that the locals are affiliated with each other. There must be a
positive showing that the national has authority and power to exercise control
over both locals and that it is actually exercising that control.
Appeal from the
David D. Weinberg of Weinberg & Weinberg,
P.C., for appellant.
Douglas L. Curry, Soren S. Jensen, and J.
Russell Derr of Erickson & Sederstrom, P.C., for appellee.
BOSLAUGH, WHITE, HASTINGS, CAPORALE,
SHANAHAN, and GRANT, JJ.
WHITE, J.
Plaintiff-appellant, International Brotherhood of Electrical Workers Local 244
(Local 244) filed a petition with the Commission of Industrial Relations (CIR)
in June of 1984 seeking recognition and representation of employees in a
bargaining unit consisting of crew foremen employed in the operations department
of respondent-appellee, Lincoln Electric System (LES). LES answered, stating
that the bargaining unit was inappropriate because the title of crew foreman is
not an appropriate unit for bargaining and if Local 244 became certified, the
result would be that supervisory and nonsupervisory employees would be part of
the same bargaining unit. Trial was held and the CIR dismissed Local 244's
petition and request for an election. The CIR concluded that since both locals
were affiliated with the same international union, a conflict of interest could
result.
The issue on
appeal in this case is whether the CIR erred in dismissing appellant's petition
because supervisors and the employees they supervise, represented by another
union, belong to the same international union and the international union's
control over the two unions creates the possibility of a conflict of interest
and prevents the two local unions from acting independently in collective
bargaining relationships with the same employer.
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.
City of Omaha v. Omaha Police Union Local 101, ante p. 197, 382 N.W.2d 613
(1986). It is not for the Supreme Court to resolve conflicts in the evidence.
Credibility of witnesses and the weight to be given their testimony are for the
administrative agency as a trier of fact. In re Appeal of Levos, 214 Neb.
507, 335 N.W.2d 262 (1983).
Crew foremen
and crew leaders employed in the operations department of LES were formerly
members of a bargaining unit represented by Local 1536 of the International
Brotherhood of Electrical Workers, AFL-CIO (Local 1536). Local 1536 also
represented the employees these crew foremen and crew leaders supervised, and
LES challenged the status of the supervisors on the ground that a collective
bargaining unit could not legally include both supervisory and nonsupervisory
employees. This issue was resolved by this court in December of 1983 when it was
decided that Local 1536 could not represent both the rank and file employees and
their supervisors. IBEW Local 1536 v.
Following this
decision, the supervisors, with the assistance of Ken Sawyer, the regional
international representative of IBEW, attempted to organize themselves as a
separate bargaining unit within Local 1536. When they were informed that LES
would not recognize them in this capacity, they decided to attempt to make a
group transfer to Local 244. Ken Sawyer again assisted them in their efforts. In
May of 1984 Local 244 agreed to accept the supervisors as a separate bargaining
unit, and most of the supervisors have been members of Local 244 since June 1,
1984. The change in the bylaws of Local 244 necessary to accept the new members
and the group transfer itself were both approved by the international union as
required in the IBEW constitution and rules for local unions and councils under
its jurisdiction (IBEW constitution). LES refused to recognize the supervisors
as members of Local 244, and Local 244 petitioned the CIR for relief.
The CIR found
that the crew foremen and crew leaders comprised an appropriate unit for
collective bargaining under the criteria established by the CIR and this court.
The CIR next considered whether the IBEW's control and influence over the
supervisory employees, represented by Local 244, and the employees they
supervise, represented by Local 1536, create the possibility of a conflict of
interest between the two locals and prevent them from acting independently in
their collective bargaining relationship with LES. The CIR concluded that IBEW's
potential and actual control was sufficient to warrant a dismissal of Local
244's petition. We agree.
We decided in City
of
In this case
there is sufficient evidence of control by the international union and the
possibility of a conflict of interest which could prevent independent collective
bargaining to support the CIR's decision. Sawyer is the regional international
representative for both locals. His duties, as an employee of IBEW, include
assisting local unions in negotiation of contracts, handling arbitration cases,
and investigating interunion matters as directed by the international president.
His functions specifically include assisting local unions in developing
bargaining strategy. The potential for a conflict of interest is apparent under
these circumstances.
Both Local 244
and Local 1536 are chartered by the IBEW, governed by the IBEW constitution, and
participate in the international convention through their elected delegates. The
locals are allowed to adopt bylaws governing their affairs only with the
approval of IBEW. Similarly, a member who desires to transfer from one local to
another must have approval from the international organization. The IBEW
constitution provides that "No L.U. [local union] shall allow its members
to work for any employer in difficulty with any other L.U. of the I.B.E.W.,
providing the I.P. [international president] has recognized such
difficulty." Control by the international union is amply demonstrated in
the record of this case.
The decision
of the CIR is affirmed.
AFFIRMED.