13 CIR 250 (1999).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Before Judges DeLay, Anderson and Orr.

DELAY, J:

NATURE OF THE PROCEEDINGS:

The Fraternal Order of Police, Lodge 31 (hereinafter "Petitioner"), a labor organization, filed a Representation Petition on February 11, 1999, seeking to represent a bargaining unit of employees consisting of approximately eleven sworn officers of the Police Department of the City of York, Nebraska. The City of York (hereinafter "Respondent") filed an answer claiming that an appropriate bargaining unit could not include the chief of police, Donald Klug, or the lieutenant, Jack Sikes, since they are both supervisors. Petitioner then filed a reply alleging that Petitioner did not seek to include the chief of police in the proposed unit and the lieutenant was not a "supervisor" within the meaning of § 48-801(9) (Reissue 1993).

The Commission held a hearing on March 16, 1999, to determine an appropriate bargaining unit. The parties stipulated that the Chief of Police should not be included in the proposed unit and that the sole issue was whether Lieutenant Sikes could properly be included in the proposed unit with other sworn officers excluding the chief of police.

After the hearing, on March 22, 1999, Petitioner filed a letter brief argument claiming that Lieutenant Sikes has a community of interest with the other sworn officers and does not have sufficient supervisory powers to require exclusion from the unit. For reasons set forth below, we agree and rule in favor of Petitioner.

FINDINGS OF FACT:

When Petitioner filed the petition in this case, the City of York's sworn officers in the police department consisted of six (6) patrol officers, three (3) sergeants, one (1) lieutenant, and the chief of police. According to the organizational chart, patrol officers report directly to the sergeants and also to the lieutenant, sergeants report to the lieutenant, the lieutenant reports to the chief of police and the chief of police reports to the city administrator. However, the organizational chart has substantially been disregarded by the department as set forth below.

Prior to January of 1998, the three sergeants performed as patrol supervisors and worked rotating eight hour shifts. The police department significantly changed its policy in January of 1998 by adopting a fourth patrol shift and extending the shifts from eight hours to twelve hours. The scheduling change ensured that every police officer would have at least every other weekend off from work. Currently, each twelve-hour shift is patrolled by one patrol supervisor and one or two patrol officers.

The new scheduling policy altered several aspects of the department and Lieutenant Sikes' position therein. With the creation of a fourth shift, Lieutenant Sikes became the fourth patrol supervisor. Rather than working 8:00 a.m. to 4:30 p.m. Monday through Friday as he did previously, Lieutenant Sikes now works twelve-hour shifts on a rotating basis with the other patrol supervisors. The scheduling assignments are made by seniority selection, and Lieutenant Sikes works day shifts from 7:00 a.m. to 7:00 p.m. on a rotating daily basis. Additionally, when the scheduling change was made and the lieutenant became a shift supervisor, Lieutenant Sikes' uniform color was changed from white to gray to match the other officers. Finally, whereas Lieutenant Sikes previously evaluated the sergeants, he no longer does so. Lieutenant Sikes evaluates the officers that work on his patrol shift, just as the sergeants evaluate the officers on their patrol shifts. The chief evaluates the lieutenant and the sergeants.

Lieutenant Sikes' duties are substantially similar to those of the other patrol supervisors and patrol officers. Lieutenant Sikes responds to calls like other patrol supervisors, handles everything from dog complaints to traffic accidents and has recently been requested to be recertified to run radar like the other officers. Unlike the other officers, Lieutenant Sikes serves as the chief of police in Chief Klug's absence, maintains training records, maintains and secures the evidence room, and evaluates the dispatcher. Additionally, Lieutenant Sikes administers some, but not all, physical agility tests for new recruits.

LEGAL ANALYSIS:

Since Lieutenant Sikes exercises his independent judgment in responsibly directing patrol officers on his shift, he is a supervisor as that term is defined by § 48-801(9) (Reissue 1998). Generally, supervisors cannot be in the same bargaining unit as non-supervisors. § 48-816(3)(a). 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

Lieutenant Sikes outranks the sergeants and patrol officers. Therefore, the only person in the York Police Department that has authority "subordinate only to the chief" is Lieutenant Sikes. As the chief's immediate assistant with authority subordinate only to the chief, Lieutenant Sikes does not fall within the above-stated exception for police supervisors and cannot be presumed to have a community of interest with his subordinates.

This is not, however, the end of our analysis. As stated in Nebraska City Police Officers Bargaining Unit v. City of Nebraska City, 9 CIR 300, 303 (1988):

[Section 48-816(3)] only says the immediate assistants cannot be included in thepresumption that those subordinate to the immediate assistants belong in the same unit. We agree that the assistant chiefs ordinarily belong with the chief and not the patrolmen, and we have said so. We don't, however read § 48-316(3) to require this and in this particular case, the application of the community of interest guidelines require a different bargaining arrangement.

(emphasis in original) (citations omitted).

Although a community of interest between Lieutenant Sikes and the other sworn officers cannot be presumed in accord with the statute, it is still possible that a community of interest exists, and in this case, the evidence shows that it does. The Supreme Court of Nebraska has set forth the following factors that are to be considered when determining whether a community of interest is present within a proposed bargaining unit: mutuality of interest in wages, hours and working conditions; the duties and skills of the employees; the extent of union organization among the employees; the desires of the employees; the extent of employee interchange; and the policy against fragmentation of units. International Bhd. of Elec. Workers Local 1536 v. Lincoln Elec. Sys., 215 Neb. 840, 842, 341 N.W.2d 340, 341 (1983) (citing City of Grand Island v. American Fed'n of State, County & Municipal Employees, 186 Neb. 711, 185 N.W.2d 860 (1971); American Assn. of Univ. Professors v. Board of Regents, 198 Neb. 243, 253 N.W.2d 1 (1977); Sheldon Station Employees Assn. v. Nebraska Pub. Power Dist., 202 Neb. 391, 275.N.W.2d 816 (1979)). The Court has also cautioned that these "are not the only factors to be considered, nor must each factor be given equal weight." 202 Neb. at 395-96, 275 N.W.2d at 819.

Like the other sworn officers in the proposed bargaining unit, Lieutenant Sikes is paid by the hour, is allowed to earn overtime, earns holiday pay when he works holidays and earns longevity pay. There has been no collective bargaining unit in place for the sworn officers of the York Police Department, but Lieutenant Sikes has been a member of the Fraternal Order of Police, Lodge 31 since its inception in 1993 and desires to be part of the proposed bargaining unit. As previously stated, Lieutenant Sikes responds to calls like other patrol supervisors, handles everything from dog complaints to traffic accidents and has recently been requested to be re-certified to run radar like the other officers. Sergeant Tim Christensen, Officer Michael Hanke, Lieutenant Sikes and Chief Klug all testified that the lieutenant does the same job as the other shift supervisors and covers calls just like other officers. Since the change to twelve-hour shifts, Lieutenant Sikes has changed his uniform to match those of the other officers. More importantly, Lieutenant Sikes has served in the same capacity as the sergeants as a patrol supervisor with the additional duties of controlling the evidence locker, maintaining recruits records and evaluating the dispatcher. These additional duties are not sufficient to warrant Lieutenant Sikes' exclusion from the proposed unit given the strong showing of a community of interest.

Lieutenant Sikes does not have the authority to use his independent judgement to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees. Although Lieutenant Sikes has recommended discipline to the chief in the past, the City Code of York gives the city administrator the sole final authority to hire, fire and discipline police officers with the recommendation of the chief and the concurrence of the Civil Service Commission. The lieutenant does not have the authority to effectively recommend such action.

Finally, although Lieutenant Sikes acts as the chief in Chief Klug's absence, this alone does not require the lieutenant's exclusion from the unit. This is especially true in this case, since the city administrator, Jack Vavra, testified that when the chief is absent, additional duties are bestowed not only upon the lieutenant, but also upon the city administrator. In the absence of the chief, the city administrator takes on additional purchasing and other "personnel-type activities." The lieutenant becomes responsible for directing the work of the rank and file. This limited additional authority that is granted to the lieutenant only in the relatively rare occasion that the chief is unavailable is not sufficient to place Lieutenant Sikes into the upper echelons of management and require his separation from the bargaining unit.

Given the strong community of interest shown on the record and the limited supervisory authority that Lieutenant Sikes exercises, Lieutenant Sikes is more closely aligned with the sergeants and patrol officers than with the chief; therefore, placing Lieutenant Sikes in the proposed bargaining unit will not create divided loyalties and is appropriate.

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

All City of York sworn police officers excluding the chief of police.

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

Entered April 1, 1999.