13 CIR 176 (1998).


) REP. NO. 320
Petitioner, )
Respondent. )

For the Petitioner: William Harding
Harding, Shultz & Downs
800 Lincoln Square
121 S. 13th Street
P. O. Box 82028
Lincoln, NE  68501-2028
Donald Stenberg
Attorney General
P. O. Box 98920
State Capitol, Room 2115
Lincoln, NE  68509-8920
For the Respondent: Mark D. McGuire
McGuire and Norby
605 South 14th St.
Suite 100
Lincoln, NE  68508

Before: Judges DeLay, Moore and Cullan


In this bargaining unit determination case filed by the State of Nebraska (State), the State seeks to modify the collective bargaining unit represented by the State Law Enforcement Bargaining Council (Bargaining Council). The collective bargaining unit represented by the Bargaining Council contains eleven classifications including Fire Marshal Deputy. The State seeks to divide the Fire Marshal Deputy classification into two classifications: one classification composed of Fire Marshal investigators; another classification composed of Fire Marshal inspectors, and to remove the new Fire Marshal inspector classification from the bargaining unit. The Bargaining Council resists this action.

The bargaining unit herein was created under the State Employees' Collective Bargaining Act (The Act) pursuant to Neb. Rev. Stat. §1373(1)(g) which provides in pertinent part:

(1) For the purpose of implementing the state employees' right to organize for the purpose of collective bargaining, there are hereby created twelve bargaining units for all state agencies . . . The units shall consist of state employees whose job classifications are occupationally and functionally related and who share a community of interest. The bargaining units shall be:

* * *

(g) Law Enforcement, which unit is composed of employees holding power of arrest, including Nebraska State Patrol officers and sergeants, game wardens, fire marshal personnel, and similar classes.

Pursuant to The Act, the Law Enforcement Collective Bargaining Unit was certified to include the following eleven classifications:

1. State Patrol Trooper I

2. State Patrol Trooper II

3. State Patrol Sergeant

4. State Patrol Investigation Officer

5. Game and Parks Conservation Officer I

6. Game and Parks Conservation Officer II

7. Fire Marshal Deputy Trainee

8. Fire Marshal Deputy

9. Fire Marshal Deputy/Pipeline Safety

10. Liquor Control Inspector

11. State Patrol Carrier Enforcement Officer

The Act provides at §81-1374(4) in part that:

No job classification included within any bargaining unit shall be removed or reassigned from a unit until (a) two years after April 9, 1987, or (b) there is a certified exclusive collective-bargaining agent for the unit, whichever occurs first. After such period, adjustments in the job classifications which compose any bargaining unit prescribed in section 81-1373 shall comply with the Industrial Relations Act and any rule and regulation adopted and promulgated pursuant thereto;

Under the Industrial Relations Act (IRA) and the rules and regulations adopted and promulgated pursuant thereto, the burden of proof is on the Petitioner seeking changes in a certified collective bargaining unit. Here the burden is on the State.

The evidence establishes that employees in the Fire Marshal's office identified as inspectors and those identified as investigators have a mutuality and a community of interest in wages, hours, and other terms and conditions of employment sufficient to allow both to be included in the same bargaining unit under IRA standards.

The parties, however, agree that a significant issue to be considered in this case is whether Fire Marshal employees performing the inspector function differ from those performing the investigator function with reference to the power of arrest. Inspectors do preliminary fire investigations while investigators are the primary investigators in cases of suspected arson. Investigators are sent to the Law Enforcement Training Academy while inspectors are not.

Considering the evidence before the Commission in this case, especially in light of the Opinion of the Attorney General of Nebraska, Opinion No. 138, October 25, 1985, the Commission finds that the State has failed to establish by the greater weight of the evidence that Fire Marshal Deputies functioning as inspectors and investigators differ with respect to the power of arrest or that any modification of the collective bargaining unit represented by the Bargaining Council is required.

IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that the Petition herein be, and the same hereby is, dismissed.

Entered this 10th day of November, 1998.