13 CIR 295 (1999).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

For the Petitioner: Michael Boyle

Boyle & Associates, P.C.

1074 Howard Street

Omaha, NE 68102-2815

For the Respondent, Jerry L. Pigsley

City of Beatrice: Harding, Shultz & Downs

800 Lincoln Square

121 S. 13^th Street

P.O. Box 82028

Lincoln, NE 68508

Before: Judges DeLay, Moore, and Anderson.

On July 29, 1999, Fraternal Order of Police, Lodge 54A (hereinafter, "Petitioner") filed a Petition seeking an election to determine whether it could be the bargaining representative for "all employees of the [City of Beatrice] Police Department of the rank of Seargant (sic), Patrol Officer, Investigator, Animal Control Officer and Dispatcher." (Petition, ¶ 7) Petitioner admitted that another bargaining agent, Nebraska Association of Public Employees, AFSCME Local 61 (herinafter "NAPE"), represented the above described bargaining unit on the date of the petition, and claimed that NAPE's contract with the City of Beatrice would expire on September 30, 1999. (Petition, ¶ 5) Petitioner does not seek to represent the chief of police, police captains, police lieutenant, or police secretary. (8:20-24)

On August 6, 1999, the Commission found that Petitioner met its Rule 10 showing of interest by filing an authorization petition for an election signed by 23 of the 24 members of the proposed bargaining unit.

On August 18, 1999, the City of Beatrice filed an answer admitting all of Petitioner's allegations except for the appropriateness of the bargaining unit. The Answer set forth an affirmative defense that "Petitioners cannot represent law enforcement or 'guard' employees of the City of Beatrice Police Department and also represent civilian or 'non-guard' employees of the City of Beatrice Police Department because of the inherent conflict of interest recognized in Fraternal Order of Police, Lodge 41 v. County of Scotts Bluff, 13 CIR 236 (1999)." (Answer, ¶ 11) Shortly thereafter, on August 24, 1999, NAPE filed a disclaimer of interest in the requested election.

The Commission held a hearing on Wednesday, September 22, 1999, before Judge Thomas H. DeLay. At the hearing, Michael Boyle represented Petitioner, Jerry L. Pigsley represented the City of Beatrice (hereinafter, "Respondent"), and NAPE did not enter an appearance. The parties stipulated that Petitioner has the burden of proving that a community of interest exists between the bargaining unit members. The parties also stipulated that Respondent has the burden of proving that the unit contains both guards and non-guards.

Respondent offered exhibits 100-173. Both parties stipulated that the exhibits were admissible, and the Commission received exhibits 100-173 into evidence. Respondent filed a trial brief before the hearing, and the parties filed alternating briefs after the hearing.

The issue before the Commission is whether a bargaining unit comprised of positions of police sergeant, police officer, public safety dispatcher, lead dispatcher, and community service officer is an appropriate unit for bargaining. For the reasons stated herein, the Commission finds that in accordance with the facts of this case, the bargaining unit proposed is an appropriate unit.

A police sergeant "patrols and supervises an assigned patrol shift; serves as a lead investigations officer or supervises a special unit of the department and carries out specialized duties and responsibilities as assigned." (Ex. 104) Among the police sergeants' essential duties are the following: patrolling an assigned area by automobile or occasionally by foot in the general enforcement of law and the prevention of crime or disorder; apprehending and arresting law violators; visiting crime scenes to assist and supervise police officers; responding personally to the more difficult complaints and problems; and interrogating witnesses and prisoners. Id.

A police officer, "patrols an assigned beat in the enforcement of law and order; takes special assignments in investigations and protection of life and property; and [performs] related work." (Ex. 108) A police officer's essential duties include: operating an automobile in patrolling an assigned area for the prevention of crime and the enforcement of traffic laws and regulations; responding to radio and telephone dispatches and appearing at the crime scenes; investigating and preparing reports on accidents, offenses, and property damages; making arrests; issuing citations; giving verbal warnings; intervening in private or public disputes to protect the public and maintain order; and transporting prisoners. Id.

The community service officer "performs work in the collection of dogs, cats and other animals in the enforcement of ordinances relating to animal control; performs work in enforcing the parking regulations and parking meter and time limits of the City ordinances; installs, repairs and maintains parking meters; [and] answers inquiries of the public." (Ex. 107) The community service officer's essential duties include: catching and impounding dogs, cats and other animals; taking action on complaints by locating and talking with animal owners; caring for and feeding impounded animals; enforcing provisions of parking meters, time parking violations and no parking zones; issuing notices to violators; and directing traffic as requested by officers. Id.

The lead dispatcher "performs work and leads other dispatchers in the operation of the 911 communications center; receives telephone calls and radio messages and transmits voice radio messages to appropriate public safety and emergency personnel; administers and coordinates with the law enforcement computer system; [and] performs in the maintenance of a variety of communications and law enforcement records." (Ex. 106) Among the lead dispatcher's primary duties are: working a regular shift in the 911 Center; receiving telephone calls and other messages requiring action, determining priorities and transmitting information to appropriate personnel; monitoring calls; dispatching fire, police and emergency medical services for a county-wide dispatch system, including one additional city; monitoring fire and burglary alarms and dispatching as needed; assisting in the processing of reports and records; operating State Crime computer/teletype network; receiving and entering data; maintaining a radio log and related files; responding in off-hours to emergency needs at the center; and planning for responses and actions in the event of natural and civil disasters. Id

A public safety dispatcher "receives telephone calls and radio messages and transmits voice radio messages to appropriate police and emergency personnel; receives the public and supplies necessary information; [and] maintains a variety of records." (Ex. 105) A public safety dispatcher's essential duties include: receiving and making telephone calls and other messages requiring action and transmitting orders to appropriate law enforcement, ambulance, and fire personnel; monitoring calls; receiving emergency calls and dispatching appropriate units to handle emergencies; maintaining a radio log or recording; assisting in the processing of reports and records; assisting in booking prisoners and receipting for prisoner property; performing a variety of duties for uniformed officers, including typing reports and taking notes during interrogations; and monitoring jail cameras and alarm systems. Id.

Collective bargaining units should be comprised of employees who share a community of interest. American Ass'n of Univ. Professors v. Board of Regents, 198 Neb. 243, 253 N.W.2d 1 (1977). According to the Nebraska Supreme Court, the following factors are to be considered in determining whether a community of interest exists: "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, 342 (1983), cititing Sheldon Station Employees Ass'n v. Nebraska Pub. Power Dist., 202 Neb. 391, 275 N.W.2d 816 (1979); American Ass'n of Univ. Professors v. Board of Regents, supra; City of Grand Island v. American Fed'n of State, County & Municipal Employees, 186 Neb. 711, 185 N.W.2d 860 (1971). These factors are not the only factors to be considered, and equal weight need not be given to each factor. Sheldon Station Employees Ass'n, supra. Furthermore, § 48-838(2) specifically directs: "the commission shall . . . determine the appropriate unit for bargaining and for voting in the election, and in making such determination, the commission shall consider established bargaining units and established policies of the employer."

The evidence in this case supports a finding of a community of interest between the police sergeants, public safety dispatcher, lead dispatcher, community service officer and police officers. The history of collective bargaining within the Beatrice Police Department spans approximately twenty-five (25) years, dating back to around 1975, during which time the dispatchers and the community service officer have been members of the union and bargaining unit along with the police officers and sergeants. This lengthy bargaining history cannot be discounted. State Colleges Educ. Ass'n v. Board of Trustees, 205 Neb. 107, 286 N.W.2d 107 (1979). A dispatcher and the community service officer both testified that they desired to be part of the bargaining unit. No one testified that they did not want to be part of the unit. Furthermore, the proposed bargaining unit positions all are paid on an hourly basis, work similar shifts, and share the same building and working conditions with constant interaction. They also all share a common supervisor, a lieutenant. Finally, the policy against fragmentation of bargaining units favors finding a community of interest. For purposes of determining a community of interest these factors all outweigh the differences in duties and job skills between the employees and the differences in compensation that arise because sworn officers are subject to civil service laws.

Having determined that there is a sufficient community of interest between the proposed bargaining unit members for them to be represented in a single bargaining unit, the Commission must now determine whether there the guard/non-guard rule bars the proposed members from being represented in the same bargaining unit.

The Commission's rule prohibiting guard and non-guard employees from being in the same bargaining unit or being represented by the same union is well established. See, FOP Lodge 41 v. County of Scotts Bluff, 13 CIR 236 (1999); Nebraska Ass'n Of Public Employees v. County of Richardson, 12 CIR 100 (1994); CWA v. Hall County, 12 CIR 53 (1994); Supervisory, Managerial, and Prof'l Employees Bargaining Ass'n. v. City of Bellevue, 11 CIR 48 (1991); CWA v. County of Scotts Bluff, 11 CIR 60 (1990); 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). See also, Lincoln City Employees Union v. City of Lincoln, 210 Neb. 751, 317 N.W.2d 63 (1982).

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." FOP Lodge 41 v. County of Scotts Bluff, 13 CIR 236 (1999) (quoting 29 U.S.C. § 159(b)(3)). Furthermore, the Commission has held:

To determine whether an employee is a 'guard,' the [Commission'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)).

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)). Nebraska law prohibits public employees from striking and public employers from locking out employees (Neb. Rev. Stat. § 48-821); nevertheless, there is still a possibility, however slight, that labor unrest could occur. If a strike were to occur, the employer should be afforded a core group of protection employees, unconnected to the striking union, who could safeguard the employer's property and people thereon from unruly people who are unhappy with the employer as a result of the labor dispute.

In the present case the Commission is not faced with placing police officers in a unit with city employees from other departments, but rather placing police officers in a unit with other police department employees, namely dispatchers and a community service officer. As indicated above, these positions share a strong community of interest and constantly interact during the performance of their duties. All of the proposed bargaining unit members play a vital role in law enforcement.

The chief of police, a public safety dispatcher, and a police sergeant all testified as to the important role the dispatchers play in law enforcement. Chief Lang testified: "Dispatchers are obviously the officer's link to the rest of the world," (28:24-25) and "the role of the dispatcher certainly is -- they're assigned to the support services division which explains somewhat of their role in they're a support service and as they provide the connection between the public and the officer in the field. Certainly it's a very critical role in public safety." (45:19-46:1) Likewise, Public Safety Dispatcher Henrichs testified, "[E]verything is answered through the dispatch center. All the phones are answered there, 911 plus the local phones. And everything that originates, originates in the communications center with all the dispatchers. So all the information on a call is funneled through the dispatchers to the officers." (64:11-17) Additionally, Henrichs testified that she agreed with the police chief's description of the dispatchers as the link to the rest of the world, stating, "I don't understand how a police officer can go on a call and do his job without us being involved in it. I don't know how it could happen." (75:10-17) Finally, Sergeant Lamkin testified, "I agree [with the chief's reference to dispatchers as the link to the rest of the world for the police officers]. They initiate the call, like [Henrichs] said. And they end the call because when we leave, say, a traffic stop or any call they send us on, we advise them what the status or the disposition of the call is, whether a report's going to be made, report's not going to be made, whether it was a juvenile contact, whether we did a vehicle search or what have you. So the call starts and stops with dispatch." (87:8-17)

Sergeant Lamkin also testified, "If I try to contact another officer and I can't, I immediately contact dispatch and ask them where is this officer at, what are they doing. I rely upon them to help me in keeping track of the officers and their safety." (86:21-87:1) Henrichs

also testified about the role the dispatchers play in protecting the police officers' safety. During her testimony, the following colloquy took place:

[Boyle]: Are there times during your shift where you'll perform a status check on an officer?

[Henrichs]: Yes.

[Boyle]: Would you tell us about what that is and how that works?

[Henrichs]: It's procedure to do a status check on an officer that's on a domestic dispute or traffic offense after 10 minutes. What we do, we also have county officers that we check on every half hour or hour and a Wymore agency that we check on every half hour or hour.

With the city officers, we have enough radio

communication that usually we know their location and where they're at. Any time that we have -- that we've been out of touch with an officer for over 10 minutes, we'll do a status check on them just to see.

[Boyle]: And if an answer isn't received, what do you do next?

[Henrichs]: If an answer isn't received, we usually try to

contact another officer, someone that we do have

communication with, and send them to the last location

that we knew that they were at.

We also page them on their pagers.

(71:6-72:4)

In addition to monitoring calls, dispatching officers, and tracking officers' whereabouts, the dispatchers also monitor access to the police station during the night and monitor jail cameras and alarm systems. Such duties may qualify them as guards for the purposes of the guard/non-guard distinction. In Rhode Island Hosp., 313 NLRB 343 (1993), the NLRB held that hospital security dispatchers were statutory guards. The security dispatchers duties included monitoring a closed circuit TV system in the security station and calling security officers whenever they observed incidents or problems that needed a response. The NLRB concluded:

We . . . find the security dispatchers to be guards under Section 9(b)(3). In monitoring the Hospital's closed circuit TV system, they are directly responsible for being alert to any incident, situation, or problem which needs responsive action and for reporting such incidents to the proper authorities. Employees performing similar functions have been found to be guards under the Act. MGM Grand Hotel, 274 NLRB 139 (1985). They are also the individuals whom employees and other people call for assistance with problems and emergencies, including those involving security and safety. The fact that dispatchers do not personally confront employees or others, but rather merely report violations, does not defeat their guard status. Because the dispatchers' authority to observe and report infractions is not merely incidental to their other duties, but instead constitutes one of their primary responsibilities which is an essential link in the Hospital's effort to safeguard its employees and enforce its rules, the dispatchers are guards. A.W. Schlesinger Geriatric Center, 267 NLRB 1363, 1364 (1983); Crossroads Community Correctional Center, 308 NLRB 558 (1992).

Rhode Island Hosp., 313 NLRB at 347.

We, likewise, find the dispatchers and lead dispatcher to be "essential links" in the City's effort to safeguard its employees and the public and enforce its rules, laws, and ordinances.

Similarly, the evidence shows that the community service officer is also an essential part of the law enforcement team. The community service officer writes tickets and controls animals pursuant to the laws and ordinances of the community. The community service officer also wears a uniform that is similar to the sworn officers' uniforms, giving the police department another authoritative presence in the community. Like the dispatchers, the community service officer is supervised by a lieutenant. When the community service officer comes upon the scene of an accident, he contacts the police department and directs traffic until a sworn officer reaches the scene. The community service officer's lighted vehicle and direct radio link serve him in performing his duties in such a situation. Occasionally, sworn officers request the community service officer to maintain his position and continue directing traffic. Additionally, the community service officer has been ordered by the captain of the police department to guard a crime scene and to radio him immediately if anyone approached the scene. In summary, the evidence shows that the community service officer is an essential member of the law enforcement team and serves to enforce laws, ordinances, and rules for the protection of citizens, fellow employees, and property.

Neither the dispatchers, nor the community service officer are sworn law enforcement officers, do not carry weapons or have the power to arrest, and are not specially trained in law enforcement techniques; however, given the strong evidence in this case that they are all integral members of the law enforcement team, they may lawfully be included in a bargaining unit with police officers and sergeants. See, Schlesinger Geriatric Center, 267 NLRB 1363 (1983) (holding that maintenance employees who do not have special guard training, wear guard uniforms, or carry weapons are guards because observing and reporting infractions is an "essential step" in rule enforcement). To hold otherwise would be to ignore the prior twenty-five (25) years of bargaining history and cause undue fragmentation of bargaining units by requiring police department dispatchers, community service officers, and police officers to collectively bargain in two or more separate bargaining units.

THE COMMISSION HEREBY FINDS, under the evidence presented, that an appropriate unit shall consist of: all sergeants, patrol officers, investigators, dispatchers, lead dispatchers, and community service officers employed by the City of Beatrice Police Department.

IT IS THEREFORE ORDERED that a secret ballot election be conducted within a reasonable time from the date of this decision within the above described unit.

All judges join in the entry of this Findings and Order.

Entered December 6, 1999.