13 CIR 232 (1998).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Appearances:

Before: Judges Orr, DeLay and Moore

Orr, J:

NATURE OF PROCEEDINGS

The Fraternal Order of Police Lodge 37 (hereafter known as Petitioner) filed a Petition for Amendment of a Recognized Unit, and Representation on July 13, 1998. Said Petition requested that the Commission's Certification Order of September 27, 1979 in Case No. 306 be amended to release the Police Department employees from the original unit, which was comprised of several City of Fremont departments and represented by AFSCME Council 32, so that they could be represented instead by Petitioner. Respondent AFSCME's Answer alleged that there was a contract bar and that an inappropriate party had been served. The City's Answer objected to the described bargaining unit in the Petition. A hearing was scheduled on AFSCME's allegations but was cancelled when AFSCME filed a Motion to Dismiss its actions and withdraw as a party. This Motion was sustained at the hearing held on the representation issue on August 31, 1998 and we find that AFSCME has withdrawn as a party. Respondent City conceded at the hearing that there was not any jurisdictional problem. The parties stipulated at the hearing that the unit should consist of police officers, sergeants, detectives, animal control officers, police dispatchers, the chief police dispatcher and reserve officers and was to exclude the chief, deputy chief, office clerical employees and confidential employee Sheri McArdle. The sole remaining issue is whether or not lieutenants should also be excluded from the unit.

FINDINGS OF FACT

There are currently three police lieutenants and a detective lieutenant. Prior to July 21, 1998, these positions reported to the Deputy Police Chief per the organizational chart which had been in effect for several years. The organizational chart was changed after discussions between Police Chief Mullen and Randy Reyzlik, Director of Support Services, to reflect a new chain of command. The lieutenants, who direct the line law enforcement officers, now report directly to the Chief as does the Deputy Police Chief, who is now in charge of only the support services. The new organizational chart was adopted by the City Council on July 28, 1998. The Petition in this matter had been filed on July 13, 1998. Both Mullen and Reyzlik testified that the purpose of changing the organizational chart was to make sure that the lieutenants would be out of the proposed unit.

The lieutenants report directly to the chief (T15). The lieutenants are supervisors (T36), even by their own admission (T9). They direct case assignments and they can discipline, attempt to resolve grievances, and fill out performance evaluations. While the detective lieutenant testified that he believed he was in the bargaining unit because he was paid some of the same benefits that bargaining unit members received (T57), we find that the lieutenants are not currently in the unit. The Certification Order in the previous case is of no help in determining this but Mullen, who has been the Chief for years, said that he did not believe the lieutenants were in the unit and Mr. Reyzlik, who has been on the management bargaining team for 14 years, testified that the lieutenants have never been bargained for; they have never had a pay line or pay increases negotiated for them.

LEGAL ANALYSIS

The Petitioner argues that lieutenants should be in the bargaining unit because they do not have the wide range of supervisory responsibilities that the statute demands. Whether they are supervisors are not is not the main focal question. In general, supervisors can not be in the same bargaining unit as those they supervise. In 1972, §48-816 was amended to allow an exception to this for fire and police departments. The relevant law reads:

All firefighters and police officers 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 or her 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 bargaining unit...

Section 48-816(3)(b).

This section allows supervisors in fire and police departments to be in a bargaining unit with those they supervise. This presumption of community of interest can be rebutted, F.O.P. Lodge #23 v. City of Holdrege, 8 CIR 310 (1986). However, this section also says that anyone who reports directly to the Chief, as these lieutenants do, is out of the unit. The lieutenants, in this case, clearly report directly to the chief. The fact that the sergeants may also perform some supervisory duties but are included in the unit is not relevant. They do not report directly to the Chief.

The only remaining question is "can you can change an organizational chart for the sole purpose of excluding some members from the bargaining unit"? It would obviously be questionable if the organizational chart were changed to make everyone reportable to the Chief. Here we have only four lieutenant positions. Since we have found that the lieutenants are not presently in the bargaining unit, to rule that they are not to be included in the unit represented by a new group does not deny them anything that they previously had as a result of collective bargaining. The Chief testified that one of the reasons behind his decision that they should be out of the unit is that he discusses personnel matters, such as disciplinary actions, etc. with the lieutenants (T38). Pursuant to the ruling in Seward Educ. Ass'n v. School Dist., 188 Neb. 772, 784 (1972) that it is a management prerogative to maintain order and efficiency, the results of the reorganizational chain of command seems to be a reasonable management decision and barring any other strong evidence to the contrary, we find that the lieutenants should be excluded.

The Commission therefore ORDERS that the appropriate bargaining unit shall consist of:

All City of Fremont police officers, sergeants, detectives, animal control officers, police dispatchers, the chief police dispatcher and reserve officers, excluding the chief, deputy chief, lieutenants, office clerical employees and confidential employee Sheri McArdle.

Within five business days of this Order, the employer shall furnish to the Commission a typed, alphabetized list of employees in the above described unit as of the filing date of the Petition, July 13, 1998, so that it can conduct another test of the showing of interest. If the Petitioner does not achieve its showing of interest due to the enlargement of the unit beyond what was originally requested, the Commission shall allow 48 hours to furnish additional cards.

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

Entered October 30, 1998.