13 CIR 305 (2000).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

APPEARANCES:

ORR, J.

NATURE OF THE PROCEEDINGS:

Neligh Association Group (hereinafter, "Petitioner"), an informal organization of individuals employed by the City of Neligh, filed a Petition on October 14, 1999, seeking an election and certification of Petitioner as the exclusive bargaining representative for all non-management City employees.

On November 24, 1999, Petitioner filed a Motion to Determine Eligible Voters.

The Commission held a telephonic conference on this motion on December 15, 1999. During the conference, the parties stipulated that the following unit description is appropriate: "All employees of the Respondent who hold non-management positions, including water/sewer employees, garbage/recycling employees, gas department, street employees, park department employees, electric department employees, clerical employees, resource center employees, library employees, dial-a-ride employees." Commission's Order for Hearing, Dec. 21, 1999. The parties further agreed that a hearing should be held to determine whether certain employees should be classified as management or non-management.

The Commission held a hearing on January 20, 2000, to determine the management/non-management issue. At the outset of the hearing, the parties reflected their agreement that Deputy Clerk Janet Francis should be included in the unit. Respondent then attempted to raise the issue of whether certain part-time employees should be included in the unit. Based on the parties' earlier stipulation to the appropriateness of the unit description, the Commission did not allow Respondent to proceed on any issues other than whether certain employees were management or non-management.

It is undisputed that the employees listed in Respondent's Certified List of Employees, plus Carl Ernesti, David Detlefson, and John Hanlin (Dial-a-Ride employees) and John Paul (Electric Department employee) are non-management employees and should be included in the unit. The only remaining issues are whether Herman Brothers (Garbage/Recycling employee) and Rachel Shrader (Park Department employee) are management or non-management.

DISCUSSION:

In order to determine whether Brothers and Shrader are management or non-management, the Commission must determine whether the employees are supervisors. Neb. Rev. Stat. § 48-816(3)(a) (Reissue 1998) provides in pertinent part, "a supervisor shall not be included in a single bargaining unit with any other employee who is not a supervisor." Section 48-801(9) defines supervisor as follows:

Supervisor shall mean any employee having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not a merely routine or clerical nature, but requires the use of independent judgment.

"To be classified as a supervisor an employee need only possess one of the enumerated supervisory powers, but must do so in the exercise of independent judgment." Hall County Pub. Defenders Org. v. County of Hall and the Hall County Board of Supervisors, 12 CIR 227, 240 (1996) (citation omitted), rev'd on other grounds, 253 Neb. 763, 571 N.W.2d 789 (1998).

Federal case law is helpful in interpreting § 48-801(9), since the federal statute is, for all current purposes, identical. See, 29 U.S.C. § 152(11). In enacting this "supervisor" definition, Congress sought to distinguish between truly supervisory personnel, who are vested with "'genuine management prerogatives,'" and employees such as "'straw bosses, leadmen, and set-up men, and other minor supervisory employees'" who are entitled to join collective bargaining units even though they perform "'minor supervisory duties.'" NLRB v. Bell Aerospace Co., 416 U.S. 267, 280-81 (1974) (quoting Sen. Rep. No. 105, 80^th Cong., 1^st Sess. 4 (1947)); Accord, 93 Cong. Rec. 4677-78 (1947). See also, Endicott Johnson Corp., 67 NLRB 1342, 1347 (1946) (holding that persons who directed one to six employees and whose "duties are to keep production moving on schedule and to inspect and control the quality of work" are not supervisors), cited with approval in Sen. Rep. No. 105, supra, at 4. Consistent with the language and purpose of the definition's independent judgment requirement, the National Labor Relations Board has long distinguished between a "superior workman or lead man who exercises the control over less capable employees. . . [and] a supervisor who shares the power of management." NLRB v. Southern Bleachery & Print Works, Inc., 257 F.2d 235, 239 (4^th Cir. 1958), cert. denied, 359 U.S. 911 (1959). Finally, the statutory definition of "supervisor" must be read narrowly "to assure that exemptions from [the Act's] coverage are not so expansively interpreted as to deny protection to workers the Act was designed to reach." Holly Farms Corp. v. NLRB, 517 U.S. 392, 399 (1996).

Under these standards, neither Brothers nor Shrader are statutory supervisors.

RECYCLING CENTER:

A Recycling Board and the City Supervisor are responsible for overseeing the Recycling Center's operations. Generally, two City employees work at the Recycling Center, Herman Brothers and Loren Lorenz. Occasionally, when help is necessary, other City employees assist at the Center.

Brothers' title is Recycling Center Manager. Brothers is generally responsible for the day-to-day operations of the Recycling Center; however, he does not possess § 48-801(9) supervisory authority. Brothers does not have the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees.

Brothers also does not use his independent judgment to responsibly direct other employees or adjust their grievances. To the extent that Brothers directs other employees, doing so is routine in nature. "The giving of routine minor orders does not make an employee a statutory supervisor." Hall County, 12 CIR at 240 (citation omitted). Brothers contacts the City Supervisor whenever a problem arises. Brothers drives a truck like the other Recycling Center employee, and he often assists in other City departments, performing tasks such as moving snow.

Finally, the City clearly treats Brothers as an employee rather than as a member of management. Brothers serves on the Safety Committee with five other members. The six person committee contains three members of management and three employee members. Brothers serves as an employee member.

PARK DEPARTMENT:

Rachael Shrader's job title is Summer Park Supervisor. During the summer (April to September), Shrader schedules mowing and other tasks for two summer employees and performs various upkeep duties herself. Shrader tells the other employees what tasks need to be done that day and the employees carry out those tasks; she does not follow them around directing them what to do. Shrader reports to a Park Board and relies on the City Supervisor to handle any problems that arise. During the non-summer months, Shrader either works in other departments or works on maintaining the Park Department's equipment. She is under the City Supervisor's direct supervision and works wherever the City Supervisor directs her to work.

Shrader does not possess the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, and does not possess even simple purchasing authority. Any item she needs to maintain the department equipment must be ordered through the City Supervisor. Any direction given by Shrader to other employees is routine in nature, simply telling them what tasks are scheduled for the day.

The purpose for excluding supervisors from being in units with those who they supervise is to minimize potential conflicts of interest. See, Nebraska Ass'n of Pub. Employees v. Nebraska Game & Parks Comm'n, 197 Neb. 178, 247 N.W.2d 449 (1976). Both Shrader and Brothers are more closely aligned with labor than with management, and including them in the unit will not create a conflict of interest. They have no policy-making authority.

As indicated previously, the City's employees, including Brothers and Shrader, work not only in their own departments, but also assist in other City departments whenever help is needed. Given the highly integrated nature of the City's departments and the widespread interaction between City employees, the Commission finds that the bargaining unit stipulated to is an appropriate unit, and such unit should include both Brothers and Shrader. Including these employees in the unit does not create a conflict of interest and avoids undue fragmentation of bargaining units. "Clearly, it is the intent of the Legislature that fragmentation of bargaining units within the public sector is to be avoided." Sheldon Station Employee's Association v. Nebraska Public Power District , 202 Neb. 391, 396, 275 N.W.2d 816, 819 (1979). "It (undue fragmentation) fosters proliferation of personnel necessary to bargain and administer contracts on both sides of the bargaining table. It destroys the ability of public institutions * * * to develop, administer, and maintain any semblance of uniformity or coordination in their employment policies and practices." Id. (quotation omitted).

CONCLUSION:

THE COMMISSION HEREBY FINDS, under the evidence presented, that Herman Brothers and Rachael Shrader are non-management employees who are properly included in the bargaining unit. An appropriate bargaining unit consists of:

All employees of the Respondent who hold non-management positions, including water/sewer employees, garbage/recycling employees, gas department, street employees, park department employees, electric department employees, clerical employees, resource center employees, library employees, dial-a-ride employees.

This unit includes all part-time and seasonal workers and those workers previously listed in Respondent's Certified List of Employees.

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

All judges assigned to the panel join in this Decision and Order.

Issued January 31, 2000.