13 CIR 241 (1999). See also CIR 244 (1999).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Appearances:

Before Judges Orr, DeLay and Moore

ORR, J:

NATURE OF THE PROCEEDINGS:

The Fraternal Order of Police, Lodge 43, a labor organization, filed a Representation Petition on December 22, 1998 seeking to represent a unit of employees consisting of twelve sworn officers of the Police Department of the City of Sidney, Nebraska. The city of Sidney filed an answer claiming that an appropriate bargaining unit could not include the chief of police, investigations supervisor, shift supervisor, patrol supervisor or code enforcement officer.

The Commission held a hearing on January 28, 1999, to determine an appropriate bargaining unit. The parties stipulated that the chief of police should not be included in the same unit and the code enforcement officer and records clerk should be included in the unit. (1:15-18). Thus, the remaining issues are whether the investigations supervisor, shift supervisor and patrol supervisor should be included in a bargaining unit with other sworn officers excluding the chief of police.

FINDINGS OF FACT:

On December 7, 1998, the chief of police and the city manager implemented a new organizational chart which allegedly altered the chain of command in the police department. (Ex. 500). Under the prior organizational chart, the lieutenant was the only officer who reported directly to the chief. (Ex. 502). Under the new organizational chart, the patrol supervisor (lieutenant), investigations supervisor (sergeant investigations), shift supervisor (sergeant patrol), and code enforcement officer all report directly to the chief. (Ex. 501). The city manager and the chief both testified that they altered the organizational chart in an attempt to keep supervisors out of the proposed bargaining unit. (69:15-24; 86:24-87:6).

The chain of command has changed on paper; however, the testimony clearly establishes that the reporting procedures in the department have not substantially changed since the new organizational chart came into effect. Investigations Supervisor Sergeant Aikens and Patrol Supervisor Lieutenant Cox both testified that although the organizational chart and job descriptions have changed, the supervision has not in fact changed, and the sergeants still report to the lieutenant. (32:8-33:23; 58:17-23; 59:8-11; 62:10-19). Chief Willis, in testifying that Lieutenant Cox was not demoted, stated, "His function has changed at least on paper. I believe that rank still carries its responsibility and authority. . . . [Patrol Supervisor Cox] has a certain degree of authority as a lieutenant. And sergeant doesn't enjoy that degree of authority." (103:13-19; 105:16-18) (emphasis added).

LEGAL ANALYSIS:

Ordinarily a change in the organizational structure of a department is within management's prerogative and will be respected by the Commission. FOP v. Fremont, 13 CIR ___ (1998) (Case No. 957). The new organizational chart, however, must be bona fide and adhered to in practice. North Platte v. North Platte Police Officers Union, 7 CIR 122 (1983). Although the investigations and shift supervisors report directly to the chief on the new organizational chart, they do not do so in practice. They still report to the lieutenant. Thus, the Commission will consider the functions of the department as practiced.

Generally, supervisors cannot be in the same bargaining unit as non-supervisors. § 48-816(3)(a) (Reissue 1998). An exception to this rule is set forth in § 48-816(3)(b), which states in part:

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 to 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 patrol supervisor (lieutenant) outranks the investigations supervisor and shift supervisor (sergeants). Therefore, the only person in the Sidney Police Department that has authority "subordinate only to the chief" is Patrol Supervisor Cox. As the chief's assistant with authority subordinate only to the chief, Patrol Supervisor Cox does not fall within the above-stated exception for police supervisors and cannot be included in a bargaining unit with his subordinates.

All other positions in the Sidney Police Department are presumed to have a community of interest and may be included in the same bargaining unit. This presumption may be rebutted. City of Omaha v. Omaha Police Union Local 101, 5 CIR 103 (1981). However, "it is well established that 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." FOP v. City of Norfolk, 8 CIR 287, 292 (1986). The evidence presented at trial indicates the investigations supervisor and shift supervisor duties include some supervisory functions; however, the evidence does not indicate that these supervisory duties in any way effect the community of interest presumed by § 48-816(b)(3). Most importantly, just as in Norfolk, "the positions in question do not exercise ultimate authority over the fate of their subordinates. The power to hire, fire, layoff and promote lies exclusively within the hands of upper management." Id. In conclusion, the evidence is not sufficient to rebut the presumption that the investigation supervisor and shift supervisor have a community of interest with their fellow sworn officers; therefore, they may be included in a bargaining unit with their subordinates.

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

All City of Sidney sworn police officers excluding the chief of police and patrol supervisor.

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

Entered March 18, 1999.