11 CIR 155 (1991)


Petitioner, |
Respondent. |


For the Petitioner: Thomas F. Dowd

Thomas F. Dowd & Associates

1905 Harney Street, Suite 710

Omaha, Nebraska 68102

For the Respondent: Kelly Baker

Harding & Ogborn and

William A. Harding

500 The Atrium

1200 N Street

Lincoln, Nebraska 68508


Loren L. Lindahl

Saunders County Attorney

551 North Linden

P.O. Box 277

Wahoo, NE 68066

Before: Judges Kratz, F. Moore, and V. Moore, Jr.


The sole issue in this case is whether the job classification for a sergeant with the Saunders County Sheriff's Office should be included in the collective bargaining unit. There is one sergeant, four deputies, and five part-time deputies on the road patrol for the Saunders County Sheriff's Office. This group of five full-time employees and five part-time employees provides 24-hour per day, 7-day-per-week police coverage for Saunders County. The sergeant, Leon Woehrer, works a shift from 8:00 P.M. to 4:00 A.M. Sergeant Woehrer says that he is in charge of the sheriff's office during his shift, and the job description (Exhibit 18) says he will be "supervising three to six patrol officers on an assigned shift; giving instructions in person and by radio; ..."

Section 48-816(3)(a), R.R.S. 1943, provides as follows:

[A] supervisor shall not be included in a single bargaining unit with any other employee who is not a supervisor.

Section 48-801(9), R.R.S. 1943, defines supervisor as:

[A]ny employee having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not a merely routine or clerical nature, but requires the use of independent judgment.

Sergeant Woehrer appears to have some of the authority delineated in this definition. The question, however, is whether his exercise of this authority is of a routine or clerical nature, or whether it requires the use of independent judgment. We find that the Sergeant does exercise sufficient independent judgment in some of his supervisory functions to be considered a supervisor under the afore-described definition. We refer particularly to the sergeant's responsibilities during his 8:00 P.M. to 4:00 A.M. shift and the designated purpose of this unusual work schedule.

We consider it significant that Sergeant Woehrer was specifically assigned to a shift which commences at 8:00 P.M. in the evening and finishes at 4:00 A.M. the following morning. The evidence shows clearly that this assignment was made in order to provide supervision and direction to the road patrol during the late night and early morning shifts when the Sheriff and the Deputy are not working.1 Sheriff Pospochal testified that he needs a supervisor to be in charge during the two evening shifts. By placing the sergeant on duty from 8:00 P.M. to 4:00 A.M., he has a supervisor available for a portion of both shifts. Sergeant Woehrer testified that he would "supervise two on one shift and two on the other." Woehrer also testified that he considers himself in charge of the road patrol deputies who are working during this period and that this is his responsibility in the Manual because the Sheriff and Chief Deputy are not working at this time. He was selected for this 8:00 P.M. to 4:00 A.M. shift so there would be a "supervisor available overlapping the two shifts of the road deputies." From his testimony, it is clear that Sergeant Woehrer considers himself responsible for two shifts, the 4:00 P.M. to Midnight shift, and the Midnight to 8:00 A.M. shift. During those periods, he says he is the only supervisor on duty.

We conclude that Sergeant Woehrer responsibly directs the deputies under his supervision during his 8:00 P.M. to 4:00 A.M. shift and uses independent judgment in doing so. When he comes on duty, he makes the decision as to which areas are worked by those deputies who are on duty with him at that time. If any of the deputies on his shift have a conflict and can't work it out themselves, he will "supervise" the conflict. During the period that he is not working, after the Sheriff and his Chief Deputy have retired for the day, if any of the road patrol deputies have a question or are not certain how to proceed, they will first call the Sergeant for instructions. Under the "chain of command," Woehrer says he is the Sheriff's and Deputy Sheriff's direct link to the officers working on his shift. He makes the decision as to when the deputies who are undergoing training are competent to go on road patrol.

We consider this supervisory authority, specifically designated in the job description and exercised during the time that the Sergeant is working, sufficient to make the sergeant a supervisor under the definition in the Nebraska Statutes.

The Petitioner argues that the Sergeant is simply a straw boss and therefore does not exercise independent judgment in the decisions he makes. In many respects he is. Some of the duties of the Sergeant, claimed to be supervisory, are those of a straw boss. However, during his 8:00 to 4:00 shift, Sergeant Woehrer responsibly directs other employees and exercises independent judgment in that regard. During the period he is working, he exercises the supervisory authority specifically designated in the job description. Therefore, he is a supervisor and cannot be included in the bargaining unit.

All judges assigned to this panel join in the entry of these Findings and Order.

Entered May 14, 1991.


1The Sheriff and the Chief Deputy work from 8:00 A.M. in the morning until approximately 5:00 or 6:00 in the late afternoon and are in charge of the road patrol duties during that period.