12 CIR 166 (1995)


Petitioner, |
Respondent. |


For the Petitioner:Soren S. Jensen

Erickson & Sederstrom, P.C.

Regency Westpointe

10330 Regency Parkway Drive

Omaha, Nebraska 68114

Howard P. Olsen Jr.

Simons, Olsen, Ediger & Selzer, P.C.

1502 Second Avenue

Scottsbluff, Nebraska 69363-1949

For the Respondent:Robert W. Mullin

Van Steenberg, Chaloupka, Mullin, Holyoke,

Pahlke, Smith, Snyder & Hofmeister, P.C.

1904 First Avenue

Scottsbluff, Nebraska 69363-1204

Before: Judges Cullan, McFarland, and DeLay



The City of Scottsbluff ("City") filed a petition seeking to amend a bargaining unit it recognized November 10, 1975. The bargaining unit consists of all police officers holding positions or classifications subordinate to the police chief and deputy chief. When the bargaining unit was recognized, the hierarchy within the police department included a deputy chief who was the chief's immediate assistant. The deputy chief answered directly to the chief. The deputy chief position has been deleted, and the duties of that position have been divided among others within the department. The parties' dispute revolves around whether seven lieutenants should remain in the bargaining unit with patrol officers, detectives, and sergeants since the deputy assistant chief position has been abolished and the lieutenants are now the next classification below the police chief. The Scottsbluff Police Officers' Association, Inc. ("Union") argues that the lieutenants belong in the bargaining unit, while the City argues that they do not.

Prior to trial the City filed a Motion in Limine seeking to prohibit any testimony by John Goomis, designated as an expert by the Union, in regard to whether or not the seven lieutenants employed by the Scottsbluff Police Department are supervisors within the meaning of § 48-801(9). The City's position was that Goomis did not have sufficient foundation to give such an opinion. The City's motion was denied by the Commission. The City renewed its motion at the start of the trial, and it is again denied.


The table of organization within the Scottsbluff Police Department is headed by the chief of police. The City Manager is above the chief of police and is the final authority in hiring and firing employees within the police department. The chief recommends such actions to the City Manager.

Immediately below the chief in the table of organization are seven lieutenants assigned to head the five divisions of the department. The patrol division has three patrol lieutenants, one for each shift. The detective, technical services, administrative, and special operations divisions are each headed by a lieutenant. Below the level of lieutenant are other sworn officers and employees within the five divisions of the department.

The present formal structure of the Scottsbluff Police Department has been in place since the deputy chief retired in December of 1992. The deputy chief position was not re-filled and, as mentioned above, has been eliminated. The job duties of the deputy chief, which included firearms instructor and maintenance of weapons, scheduling work, internal affairs investigations, fleet management and trouble shooting, were actually reassigned to the lieutenants over a period of time prior to the deputy chief's retirement. Other changes were made at the time of the deputy chief's retirement, including elimination of a relief lieutenant position and creation of the sergeant position.

The table of organization below the level of lieutenant varies in each division. In the detective division there are three detectives below the detective lieutenant. Below the detectives is a crime prevention patrol officer. In the technical services division, records technicians are below the technical services lieutenant. A humane officer is below the administrative lieutenant, and below the special operations lieutenant are six and one-half crossing guards. Below each patrol lieutenant is a sergeant and below each sergeant are patrol officers. All, except the record technicians, humane officer and crossing guards, are sworn officers. There are approximately thirty sworn officers, including the chief of police. The non-sworn employees are not members of the bargaining unit.

The chief of police is responsible for the direction of all employees and activities of the police department. The chief's duties include the annual budget. He makes hiring and firing recommendations to the City Manager. The chief also recommends disciplinary action against department employees or personally takes such action in accordance with the guidelines set forth by the civil service commission, by the city, and by the police department. He performs annual evaluations of the work performance of all employees within the department. He personally evaluates each lieutenant. In evaluating employees below the level of lieutenant, he considers evaluations made by the lieutenants of employees assigned to their respective divisions. The chief also reviews arrest and call statistics for each shift and each incident report prepared by a patrol officer. If the chief finds something of concern in a report, he speaks directly with the officer or officers involved.

The detective lieutenant's responsibilities include handling all follow-up investigations of a complex nature and all criminal investigations, supervising the crime prevent unit and coordinating and supervising the panhandle-wide narcotics unit. He reviews all police reports before they go to the county or city attorney for prosecution and, if they are incomplete, directs the investigating officer to do a more thorough investigation. He also prepares written performance evaluations on an annual basis for the three detectives and the crime prevention patrol officer in his division. Occasionally, the detective lieutenant serves as a shift supervisor over patrol officers performing the duties of a patrol lieutenant.

The technical services lieutenant coordinates and supervises the filing, documentation, and computer processing of police reports, and is head of the police department desk, responding to requests and concerns of citizens. He notifies patrol officers of court appearances and has day-to-day contact with patrol officers through logging evidence in and out of the evidence room. He annually evaluates the record technicians. He may also fill in as a patrol shift supervisor as needed.

The administrative lieutenant is responsible for fleet maintenance, traffic studies, and is a relief lieutenant for the patrol about six times a year for periods ranging from several days to two weeks. He also performs special investigations including investigation of citizen complaints and coordination of patrol officer training. He supervises the humane officer, a non-sworn employee responsible for animal control and parking enforcement. The administrative lieutenant has contact with patrol officers through preparation of their work schedules, including scheduling their shifts, days off, training, and compensatory time off.

The special operations lieutenant is responsible for in-service and out-of-town training. These training responsibilities include scheduling, teaching, testing, and maintaining the training records and reports necessary for budget purposes. He is also responsible for planning and research programs, for recruiting, screening, and training candidates for hire, for the planning and implementation of sting operations, and for disposing of department vehicles. The special operations lieutenant annually evaluates the crossing guards. He has contact with patrol officers through his responsibilities with the bike patrol, monthly briefing materials, testing of officers for skills on law enforcement procedures, and civil defense disaster exercises. In conjunction with the administrative lieutenant, he is responsible for writing policies and procedures.

The three patrol lieutenants are each assigned to one of three patrol shifts. The patrol lieutenants generally begin a shift by meeting with the patrol officers to assign them to one of three areas (beats) and, if there are four officers, to assign the fourth officer to a "cover car" to handle extra calls or to serve as back up as directed by the patrol lieutenant. At this meeting, they also discuss needed follow-up work and possibly have a short training session.

The patrol lieutenants are responsible for ensuring that all calls, emergency or routine, are properly handled and documented. Generally, patrol lieutenants spend 75-80 percent of their time on the street supervising the work of patrol officers and sergeants, monitoring what they do and taking charge of major cases or making additional work assignments to get the work completed. They have authority to authorize overtime. At times the patrol lieutenants perform the same work as patrol officers and sergeants, making arrests and traffic stops. They make a report of the shift's activities for the chief.

The patrol lieutenants annually evaluate their sergeants and patrol officers and handle minor grievances. Other grievances are referred to the chief. The patrol lieutenants may have special assignments in addition to their normal patrol duties, such as responsibility for firearms training, for the SWAT team, or for inventory of police department equipment.

Below each patrol lieutenant is a sergeant. Two days of each week, the sergeant performs the duties of a patrol lieutenant. Normally, it is the sergeant's duty to be the patrol lieutenant's assistant and to act as a relief in the patrol lieutenant's absence. When the sergeant is the shift commander, the sergeant has the same authority and duties as the patrol lieutenant. When the patrol lieutenant is on duty, the sergeant performs normal patrol duties. When a sergeant is at a scene in the absence of a lieutenant, the sergeant has the authority to direct what needs to be done. Patrol lieutenants and sergeants share an office. The office contains two desks, one for sergeants and one for lieutenants.

In the police chief's absence, a lieutenant generally performs the duties of acting chief. All seven lieutenants and one of the sergeants have served as acting chief. The chief has a standing order concerning assumption of command in the event that the chief is absent and/or incapacitated and no one has been designated to be acting chief. The record contains no evidence that anyone functioning as acting chief is empowered to directly affect the employment status of any employees through hiring, discharging, transferring, promoting, or other similar means.

Internal affairs investigations of police misconduct may result in termination or criminal prosecution of police department employees. These investigations are often assigned to the detective lieutenant but are also assigned to other lieutenants. Generally two lieutenants are assigned to each internal affairs investigation.

All seven lieutenants express a desire to be removed from the bargaining unit. They would like to remain affiliated with the Union and pay dues, but they do not want the Union to represent them in negotiations for their wages or fringe benefits. Many, if not all, of the lieutenants were members of the union since its inception. Only one lieutenant remains a member of the Union.

Some of the lieutenants acknowledge that a community of interest exists between the lieutenants and the other members of the bargaining unit. This community of interest arises from their common effort to handle dangerous situations without injury and can be seen in the fact that all the officers on the street, whether patrol officer, sergeant, or lieutenant, look out for one another. This sense of responsibility among the officers is inherent in police work and results from survival and firearms training.

The lieutenants provide a variety of reasons for wanting out of the bargaining unit. Their concern is that being in a bargaining unit with subordinates makes it difficult for them to supervise. They feel they have less in common with their subordinates than the subordinates have among themselves. Because they report directly to the police chief, they feel their goals, objectives and responsibilities for the police department are different than those of their subordinates. They are concerned that being in the same bargaining unit with subordinates may interfere with providing guidance, correcting, counseling and evaluating their subordinates.

The lieutenants recognize that for voting purposes they are greatly outnumbered. They are concerned that the Union may not understand the needs and desires of the lieutenants and may not care to understand. They are concerned that subordinates may dislike a supervisor's decision and retaliate with less enthusiastic negotiation for lieutenants' wages. They complain that the Union is slow in negotiating and disagree with how Union money is spent. As evidence of these difficulties, they point to an argument between a patrol officer who was the Union president at that time and a lieutenant over the lieutenants wanting out of the bargaining unit.


Determination of an appropriate collective bargaining unit is generally controlled by a statutory provision which excludes supervisors from bargaining units with non-supervisory employees. Section 48-816(3)(a) provides:

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

However, in connection with police department bargaining units, this statutory provision is subject to presumptions created by the legislature. These statutory presumptions provide 1) that a community of interest exists between all police officers below the chief of police and his or her immediate assistant or assistants; and 2) that all such police officers may be included in a single collective bargaining unit. Section 48-816(3)(b) provides in part as follows:

All ... police officers employed in the ... police department of any municipal corporation in a position or classification subordinate to the chief of the department and his or her immediate assistant or assistants holding authority subordinate only the chief shall be presumed to have a community of interest and may be included in a single bargaining unit represented by an employee organization for the purposes of the Industrial Relations Act.

The Supreme Court has held that these presumptions may be rebutted. See City of Omaha v. Omaha Police Union Local 101, 222 Neb. 197, 382 N.W.2d 613 (1986).

Also relevant to determination of appropriate collective bargaining units, including police officer bargaining units, is the requirement that the Commission consider established bargaining units and established policies of the employer. This requirement is set forth in § 48-838(2) which provides in pertinent part as follows:

[T]he commission shall ... determine the appropriate unit for bargaining ..., and in making such determination, the commission shall consider established bargaining units and established policies of the employer.

In an earlier case regarding law enforcement collective bargaining units, the Commission held that consideration of traditional supervisory functions without the exercise of ultimate authority such as the power to hire, fire, lay off, or promote are not sufficient to rebut the above statutory presumptions. In FOP Lodge # 15 v. City of Norfolk, 8 CIR 287, 292 (1986) we held:

[A] simple showing of traditional supervisory authority normally associated with a particular grade level is not sufficient to overcome the statutory presumption of community of interest. . . . Most importantly, the positions in question do not exercise ultimate authority over the fate of their subordinates.

In City of Omaha v. Omaha Police Union Local 101, 222 Neb. 197, 382 N.W.2d 613 (1986), the Nebraska Supreme Court affirmed a decision of the Commission refusing to remove captains from the collective bargaining unit with their subordinates within the Omaha Police Department. Police captains in Omaha were excluded from the bargaining unit in 1971 but placed back in the unit in 1972 when § 48-816(3)(b) was enacted. The City unsuccessfully sought to have them removed from the bargaining unit in 1981 and 1984. In upholding the Commission's 1984 decision, the Supreme Court relied on the statutory presumption set forth in § 48-816(3)(b):

The CIR properly found that there was little change in the police department organization plan and the duties of a captain and that [the City] failed to overcome the presumption of a community of interest.

City of Omaha, 222 Neb. at 202, 382 N.W.2d at 616.

In the present case lieutenants have been included in the collective bargaining unit since it was first recognized in 1975. At that time they were subordinate to the chief of police and a deputy chief. Over time the duties of the chief were assumed by lieutenants as the deputy chief approached retirement. When he retired, the position was abolished leaving lieutenants directly under the chief of police on the table of organization of the Scottsbluff Police Department.

The Scottsbluff lieutenants, like the sergeants in City of Norfolk (supra), use independent judgment in performing their duties. Both complete employee evaluations for the purpose of promotions and pay raises. Both groups assign and schedule work, direct employees in their work, issue oral reprimands and recommend discipline. Neither group has the authority to hire, transfer, suspend, layoff, recall from layoff, promote, discharge or reward any of the employees they supervise.

Comparing Scottsbluff lieutenants to Norfolk sergeants is not intended to discount the skill level or responsibility of lieutenants. Scottsbluff lieutenants may perform work that at times requires a higher skill level and involves greater job responsibilities than the Norfolk sergeants, but the nature and extent of their supervisory duties are similar. In both cases, the power to hire, fire, layoff and promote lies exclusively within other hands.

A review of the legislative history of § 48-816(3)(b) indicates that the legislature envisioned a small number of immediate assistants to the chief of police (generally one--perhaps two or three) and that the assistants be among the upper echelons of management.

There are seven lieutenants in the Scottsbluff Police Department which is composed of 30 sworn officers including the chief of police and lieutenants. The lieutenants comprise 24% of the 29 sworn officers below the level of Chief. Nearly one-fourth of an entire police department of moderate size cannot be considered the small number of assistants envisioned by the legislature. In Scottsbluff there is no immediate assistant or assistants to the chief of police within the meaning of the statute. This is especially so where the chief of police is so directly involved with everyone in the Department. When the duties of the deputy chief were distributed widely within the department, no one was left with the function of such an assistant.

Another significant consideration in this case is the fact that final authority for personnel decisions rests with the City Manager in Scottsbluff. The chief of police is responsible for recommending personnel actions within the police department to the City Manager. The function of lieutenants in such personnel matters is limited to evaluating those under their command and, in some instances, recommending action to the chief of police. This does not elevate the seven lieutenants to the upper echelons of management.

A further consideration in this case is the public policy against undue fragmentation of bargaining units. Undue fragmentation of public employee bargaining units increases the expense of collective bargaining and frequently adds administrative complications. Particularly where the parties' history of collective bargaining provides no compelling impetus for removing employees from an existing bargaining unit, fragmentation should be avoided.

The Commission finds that the Scottsbluff Police Department does not have an immediate assistant or assistants to the chief within the meaning of § 48-816(3)(b), that the presumption of §48-816(3)(b) has not been rebutted, and that the lieutenants shall remain in the bargaining unit.

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

Entered October 31, 1995.