13 CIR 236 (1999).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Appearances:

Before: Judges Anderson, Moore and Cullan

ANDERSON, J:

Fraternal Order of Police, Lodge 41 (hereinafter "Petitioner") filed a petition with the Commission (hereinafter "CIR") requesting an election be held to determine whether Petitioner should be the exclusive bargaining representative of three staff attorneys and fourteen secretarial staff members employed in the Scotts Bluff County Attorney's Office.

Scotts Bluff County (hereinafter "Respondent") filed an answer setting forth the following arguments: (1) the Scotts Bluff County Board of Commissioners and the Scotts Bluff County Attorney are necessary and indispensable party Respondents to this action, (2) the representation petition does not state facts sufficient to constitute a cause of action since it does not include job classifications or state who should be excluded from the unit, (3) the unit sought to be represented includes supervisors and their subordinates, and (4) Petitioner already represents "guard" employees of the Scotts Bluff County Sheriff's Department and cannot also represent "non-guard" employees of the Scotts Bluff County Attorney's Office due to a conflict of interest.

A trial was held by the Commission on February 12, 1999. Petitioner presented no evidence. Respondent introduced exhibits 1-8 which were received into evidence without objection and argued (1) that the County Attorney and Board of Commissioners of Scotts Bluff County are indispensable parties; (2) Petitioner cannot represent both employees of the County Attorney's Office and the County Sheriff's Office; (3) Petitioner has not shown a community of interest between all employees in the unit proposed for representation. Respondent's Exhibit 1 sub-exhibits A, B, and C attached thereto and Exhibit 2 establish that Petitioner indeed represents deputy sheriffs in the Scotts Bluff County Sheriff's Department. For the reasons stated herein, we find that the Petition should be denied.

LEGAL ANALYSIS:

The Commission has repeatedly held that guard and non-guard employees can neither be in the same bargaining unit, nor be represented by the same union. Nebraska Ass'n Of Public Employees v. County of Richardson, 12 CIR 100 (1994); CWA v. Hall County, 12 CIR 53 (1994); CWA v. County of Scotts Bluff, 11 CIR 60 (1990); Supervisory, Managerial, and Prof'l Employees Bargaining Ass'n. v. City of Bellevue, 11 CIR 48 (1991); Retail and Prof'l Employees Union, Local 1015 v. Metropolitan Technical Community College Area, 3 CIR 512 (1978); and University Police Officers Ass'n, Local 567 v. University of Neb., 3 CIR 335 (1977).

Using decisions of the National Labor Relations Board as guidance, the Commission has stated that the reason for the guard/non-guard prohibition is:

to insure to an employer that during strikes or labor unrest among his other employees, he would have a core of plant protection employees who could enforce the employer's rules for protection of his property and persons thereon without being confronted with a division of loyalty between the Employer and dissatisfied fellow union members.

Hall County, 12 CIR at 56 (quoting McDonnell Aircraft Corp., 109 NLRB No. 147, 34 LRRM 1489 (1954)).

For the purposes of the guard/non-guard rules, a guard is defined as "any person employed . . . to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer's premise." 29 U.S.C. § 159 (b) (3). Furthermore, the CIR has held:

To determine whether an employee is a 'guard,' the [CIR's] inquiry must focus on whether the potential conflict of loyalties . . . is present. To be a guard, therefore, the employee must be obligated to enforce plant protection rules against employees and other persons. . . Only when this element of potential personal confrontation is present in the employee's duty to protect the employer's property is that employee a 'guard' . . .

Hall County, 12 CIR at 58 (quoting Wells-Fargo Alarm Services v. NLRB, 533 F.2d 121, 125 (1976)).

The Commission has consistently treated police officers as guards for the purposes of the guard/non-guard distinction. See, e.g., Bellevue, 11 CIR 48; Metropolitan Tech., 3 CIR 512;University of Neb., 3 CIR 335. Likewise, the Nebraska Supreme Court has also accepted this distinction recognizing police officers as guards and other civilian city employees as non-guards inLincoln City Employees Union v. City of Lincoln, 210 Neb. 751 (1982). However, it is a factual matter, subject to evidentiary proof.

In Scotts Bluff, 11 CIR 60, the Commission held that the Scotts Bluff County deputy sheriffs, then represented by CWA, were "guards." The Commission dismissed the case because the union representing the deputy sheriffs was seeking to represent employees in fifteen county departments, some of whom presumably were non-guards. Additionally, the Commission has previously treated secretarial employees and clerical staff as non-guards for the purposes of the guard rule. See, e.g., Metropolitan Tech. 3 CIR 335; University of Neb., 3 CIR 512. The Petitioner in the present case has presented no evidence to convince the Commission that these rulings should not be controlling.

Neither party presented any evidence at trial regarding whether the deputy sheriffs, deputy county attorneys, or secretarial employees were or were not guards. However, the duties of the deputy county sheriffs and the deputy county attorneys are legislatively provided for in the Nebraska statutes.

The duties of county sheriffs and deputy sheriffs are set forth in Neb. Rev. Stat. § 23-1701 et seq. (Reissue 1998). In relevant part § 23-1701.02 states county sheriffs and deputy sheriffs have the duty "to apprehend . . . and bring to the court all felons and disturbers and violators of the criminal laws of this state, to suppress all riots, affrays, and unlawful assemblies which may come to his or her knowledge, and generally to keep the peace. . ." Thus, if there were a strike or labor unrest between Scotts Bluff County and county employees, the deputy county sheriffs would be a core of protection employees who could protect the county's property and persons thereon. They could do so without a division of loyalty only if they are not represented by the same union as other county employees.

On the other hand, the duties of deputy county attorneys are set forth in Neb. Rev. Stat. § 23-1201 et seq.:

[I]t shall be the duty of the county attorney, when in possession of sufficient evidence to warrant the belief that a person is guilty and can be convicted of a felony or misdemeanor, to prepare, sign, verify, and file the proper complaint against such person and to appear in the several courts of the county and prosecute the appropriate criminal proceeding on behalf of the state and county. (2) It shall be the duty of the county attorney to prosecute or defend, on behalf of the state and county, all suits, applications, or motions, civil or criminal, arising under the laws of the state in which the state or the county is a party or interested.

(emphasis added).

The duties of the deputy county attorneys are distinguishable from those of the deputy sheriff. Whereas the deputy sheriff enforces the law by arresting and/or citing those whom they suspect of violating the law, the deputy county attorney reviews those arrest reports, citations and investigation reports to determine whether the evidence is "sufficient" to file a complaint and, where such is found, to file the "appropriate" complaint. In these assessments, the exercise of their duties may or may not coincide with the actions of the deputy sheriffs.

Further, the county attorney's duty to independently evaluate the sheriff's arrest reports, citations and investigations reports creates a statutory conflict of interest between the deputies of the two offices which make them unsuitable for representation by the same labor organization.

Without any other evidence before the Commission, it therefore appears from the statutory duties of deputy county attorneys and deputy sheriffs, that the deputy sheriffs are "guards," and the deputy county attorneys are not "guards" within the above definition of that term.

We also note that the proposed bargaining unit appears to be comprised of fourteen (14) secretarial employees and three (3) attorney staff members. Without any evidence on this issue we cannot make a determination of the community of interest other than to question the community of interest between deputy county attorneys and clerical support personnel within the county attorney's office.

Finally, it is well settled Nebraska law that the moving party has the burden of proof. Nebraska State Patrol v. State Troopers Ass'n of Neb., 9 CIR 37 (1987). The Petitioner, seeking certification of a collective bargaining unit, is the moving party in this case. Having presented neither arguments nor evidence, the Petitioner has not carried its burden of proof in this case.

The Commission hereby finds, upon the record before it, that the Petition should be denied.

IT IS THEREFORE ORDERED that the Petition is hereby dismissed.

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

Entered March 17, 1999