13 CIR 352 (2001)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

APPEARANCES:

NATURE OF THE PROCEEDINGS:

Fraternal Order of Police, Lodge 48 (hereinafter, APetitioner@), filed an Amended Petition on December 7th, 2000, seeking to represent a proposed bargaining unit of employees in the Saunders County Sheriff=s Department, consisting of the following employees: Aall employees of the department below the rank of Chief Deputy, including the Deputies, Dispatchers, Corrections Officers, and the office personnel reporting to the Office Manager.@ The secretary to the Sheriff was expressly excluded.

Respondents filed an Answer to the Amended Petition on December 8^th, 2000. The Answer asserted that five of the employees contained within the proposed bargaining unit, namely the Correctional Officer Supervisor (Head Jailer), Road Patrol Supervisor (Deputy Sheriff B Patrol Sergeant), Criminal Investigation Supervisor (Deputy Sheriff B Detective Sergeant), Dispatcher/Matron Supervisor, and Dispatcher/Matron (Peg Tomsicek), are supervisors under NEB. REV. STAT. ' 48-801(9) (Reissue 1998), and should not be placed within the collective bargaining unit.

The Commission conducted a Preliminary Proceeding on December 28^th, 2000, and held a Pre-Trial Conference on February 7^th, 2001.

The Trial was held on February 15^th, 2001. The sole issue before the Commission was whether the following five (5) positions in dispute are supervisors under NEB. REV. STAT.' 48-801(9) (Reissue 1998), and whether they share a sufficient community of interest to appropriately be included in the unit for certification:

1. Deputy Sheriff B Patrol Sergeant (Road Patrol Supervisor)

2. Dispatcher/Matron Supervisor

3. Deputy Sheriff B Detective Sergeant (Investigation Supervisor)

4. Correctional Officer Supervisor

5. Dispatcher/Matron (Peg Tomsicek)

A community of interest must exist within a group of employees in a collective bargaining unit. American Ass=n of Univ. Professors v. Board of Regents, 198 Neb. 243, 253 N.W.2d 1 (1977). In determining whether a community of interest exists within a group of employees in a collective bargaining unit, the Nebraska Supreme Court considered the following factors: Amutuality 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), citing 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.

NEB. REV. STAT. ' 48-816(3) provides that a supervisor shall not be included in a single bargaining unit with any employee who is not a supervisor. An exception is made to this rule for police officers employed in the police department of any municipal corporation. All employees subordinate to the chief of the department, and the immediate assistants holding authority subordinate only to the chief, are presumed to have a community of interest.

The Petitioner argues that this presumption should apply in this case, and that a community of interest exists between all employees proposed. The Petitioners= argument, that no meaningful functional difference exists between the structure of a municipal police department, and that of a county sheriff=s department, is logically compelling. Nevertheless, the Commission is bound to follow the plain language of the statute.

Petitioner further argues an ambiguity exists in the language of this section. The second sentence of NEB. REV. STAT. ' 48-816(b) requires Apublic employers@ to recognize a bargaining unit of police officers of all ranks subordinate to the chief, and the immediate assistants. This question was raised and determined adversely to Petitioner by the Commission in Fraternal Order of Police Lodge #16 v. Platte County, 8 CIR 307 (1986).

The Legislature could have easily provided an exception for all law enforcement personnel if they wished. These provisions have not been amended since that decision. The statutory presumption of community of interest does not apply to the employees of the Respondents. Instead, the Commission must determine if the five employee positions are supervisors as alleged in the Respondents= Amended Answer.

Neb. Rev. Stat. ' 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 judgement.

ATo 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, 561 N.W.2d 789 (1998).

In Rodeo Telephone, Inc. v. Rodeo Telephone, Inc. Supervisory Employees Ass=n, 9 CIR 111, 113 (1987), the Commission stated that the definition contained in '48-801(9) was applicable in the disjunctive. The Commission found that possession of one of the duties or responsibilities of supervisors is sufficient to classify an employee as a supervisor.

In Neligh Ass=n Group v. City of Neligh, 13 CIR 305 (2000), the Commission found that federal case law was helpful in interpreting '48-801(9), since the federal statute was for all current purposes, identical to '48-801(9). See, 29 U.S.C.' 152(11). The Commission in Neligh Ass=n Group cited several NLRB cases, stating that in enacting a Asupervisor@ definition, Congress sought to distinguish between truly supervisory personnel, who are vested with Agenuine management prerogatives,@ and employees such as Astraw bosses, lead men, and set-up men, and other minor supervisory employees@ who are entitled to join collective bargaining units even though they perform Aminor 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, In re Endicott Johnson Corp., 67 NLRB 1342, 1347 (1946) (holding that persons who directed one to six employees and whose Aduties 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. The Commission further noted:

Consistent with the language and purpose of the definitions independent judgment requirements, the National Labor Relations Board has long distinguished between a Asuperior workman or lead men who exercises the control over less capable employees... [and] a supervisor who shares the power of management.@ The statutory definition of Asupervisor@ must be read narrowly Ato 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).

Applying these standards, we conclude the Deputy SheriffBPatrol Sergeant, the Correctional Officer Supervisor, and the Dispatcher/Matron Supervisor are supervisors while the Deputy SheriffBDetective Sergeant, and Dispatcher, Peg Tomsicek, are not supervisors under Neb Rev. Stat. '48-801(9).

In Saunders County Sheriff=s Employees Assoc. v. Saunders County, Nebraska, 11 CIR 155 (1991), the Commission held that this identical position should be excluded as a supervisor. 11 CIR at 157. The Commission focused on the responsibility of the Road Patrol Supervisor over his fellow employees between the hours of 4:00 p.m. and 8:00 a.m. Saunders County, 11 CIR at 156.

We conclude that Sergeant Woehrer responsibly directs the deputies under his supervision during his 8:00 p.m. to 4:00 a.m. shift and uses independent judgment in doing so. When he comes on duty, he makes the decision as to which areas are worked by those deputies who are on duty with him at that time... We consider this supervisory authority, specifically designated in the job description and exercised during the time that the Sergeant is working, sufficient to make the sergeant a supervisor under the definition in the Nebraska Statutes.

Saunders County, 11 CIR at 157. The evidence in the instant case clearly indicates that the Road Patrol Supervisor position is still essentially the same position with the same responsibilities.

As in 1991, the sergeant has supervisory responsibilities during the 7:00 p.m. to 3:00 a.m. shift. The Chief Deputy testified that the Road Patrol Supervisor is responsible for and would be the supervisor over the road patrol officers. Sergeant Bridges independently and responsibly directs the deputies under his supervision during his 7:00 p.m. and 3:00 a.m. shift. The Road Patrol Supervisor has the requisite authority and exercises the independent discretion; he is a supervisor.

The Respondent contends that the position of Dispatcher/Matron Supervisor, Colleen Peavy, should not be included in the Petitioner=s bargaining unit. Peavy appears to have some of the authority delineated in '48-801(9).

Peavy currently has four full-time and three part-time dispatchers reporting to her. The Dispatcher/Matron Supervisor position is responsible for preparing payroll, recommending transfers of dispatchers, disciplining dispatchers, and approving time cards. Peavy issued several written disciplinary warnings to a single dispatcher, based on her own independent judgment. According to her testimony, this dispatcher continued to perform below Peavy=s expectations, despite previous warnings by Peavy. Peavy effectively recommended that this dispatcher be terminated. The Chief Deputy and the Sheriff supported her decision.

Chief Deputy Woehrer testified that he expected the Dispatcher/Matron Supervisor to discipline her employees. He acknowledged that she has discussed discipline issues with him, and he could not recall ever overruling a recommendation she made concerning discipline.

The Sheriff is not involved in the day to day operations of dispatch. Dispatchers are assigned work by the Dispatcher/Matron Supervisor. If a problem or a complaint concerning dispatch is presented to the Sheriff, he will refer it to the Dispatcher/Matron Supervisor.

The Commission concludes from the evidence that the Dispatcher/Matron does exercise independent judgment. The Dispatcher/Matron Supervisor is a supervisor.

Investigation Supervisor (Deputy SheriffBDetective Sergeant):

The Respondent contends that the position of Investigation Supervisor, Jeffrey Morris, should not be included in the Petitioner=s bargaining unit. Morris= job title reflects the type of supervisory authority described in '48-801(9). The question, however, is whether his exercise of this authority is of a routine or clerical nature, or whether it requires the use of independent judgment.

The Investigation Supervisor does not use his own independent judgment to hire, transfer, suspend, lay off, recall, discharge, assign, reward and discipline other employees. We note that currently there are no subordinate personnel working under the Investigative Supervisor, and in the past there has never been more than one other person in the Investigation Department.

The function of the Investigation Department at Saunders County is specialized in nature. One of the essential job functions of the Investigation Supervisor is his control of the crime scene. The Saunders County Sheriff=s Department Manual states that the Investigation Supervisor Aunder direction, supervises deputy investigators in performances of their special-service activity; may act in the absence of a command rank officer.@ Sergeant Morris testified concerning his extensive training in the area of crime scene control. In order to control the crime scene and preserve all the evidence, the Investigation Supervisor may on occasion be in charge of even higher ranking employees of Saunders County Sheriff=s Department.

The Investigation Supervisor is essentially a trained specialist in criminal investigations, crime scene control, and proper procedures for preservation of evidence. He presently supervises no staff. In the past he did not truly exercise independent judgment in supervising an employee ostensibly under him in the chain of command. He performs a distinct, and specialized function with the department, and does not act as part of management. His control of the crime scene is temporary, and is due simply to his specialized knowledge.

The Investigation Supervisor does not exercise sufficient independent judgment in assigning work, or changing an officers workload. Sergeant Morris suggested to the Chief Deputy that a fellow investigative officer should have his workload changed in order to adequately keep up with his investigative work. The requested change to the officers workload was not made at the time. We find the Investigation Supervisor is not a supervisor.

This position is the closest question presented in this case. The Correctional Officer Supervisor has extensive paper authority in his job description, but in practice exercises fairly limited independent judgment.

He does not hire, transfer, suspend, lay off, recall, promote, discharge, assign, remand, or discipline other employees. The adjustment of grievances amounts to discussing problems with the complaining employee. He testified that discipline was handled by his preparing an incident report, discussing it with the staff, and then carrying out the Sheriff=s directions. He established a work schedule that is essentially a repetitive permutation of prior schedules. If scheduling problems develop which cannot be resolved by agreement, he often sacrifices his own time off to fill the shift. His role with respect to time sheets appears to be merely that of an auditor for accuracy.

The Sheriff testified he leaves day to day operations of the jail to the Corrections Officer Supervisor. He apparently exercises some degree of independent judgment on what training employees receive. He investigates, and resolves inmate grievances. The Correctional Officer Supervisor determines when a new hire is ready to be placed on a shift without supervision.

The Commission has previously held similar positions to be supervisors. See Fraternal Order of Police Lodge #16 v. Platte County, 6 CIR 286 (1982). Neb. Rev. Stat. ' 48-801 (9) requires only that the employee use independent judgment in the exercise of one of these supervisory functions. We conclude that the Correctional Officer Supervisor does exercise independent judgment in reasonably directing subordinate employees, and is a supervisor.

The Respondents originally contended that this individual responsibly directed other employees. The evidence at trial did not support this contention, and Respondents have abandoned this position in its post-trial brief. This individual is not a supervisor.

Petitioner contends that a bargaining unit of employees of less than department size is inappropriate, as an undue fragmentation of a bargaining unit. In Papillion/LaVista School Dist., 250 Neb. 308, 562 N.W.2d 335 (1995) the Supreme Court found the statutory presumption against bargaining units of employees of less than departmental size did not negate the specific statutory language providing Aa supervisor shall not be included in a single bargaining unit with any other employee who is not a supervisor.@

Although the determination is this order may result in fragmentation, it is not undue fragmentation. We are compelled to follow the specific language of Neb. Rev. Stat. ' 48-801 (9) in determining the appropriate bargaining unit.

THE COMMISSION HEREBY FINDS, from the evidence that an appropriate unit shall consist of: all employees of the Saunders County Sheriff=s Department (other than the secretary to the Sheriff) below the rank of Chief Deputy, including the Deputies, Dispatchers, Corrections Officers, and the office personnel reporting to the Office Manager, but excluding the Deputy Sheriff B Patrol Sergeant, the Correctional Officer Supervisor, and the Dispatcher/Matron Supervisor.

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

All panel judges join in the entry of this order.

Issued April 11, 2001.

I concur with the majority=s analysis of the current law and decision drawn therefrom. However, I think it is an artificial distinction to differentiate between rank and file organization of a police department and that of a sheriff=s department. Unfortunately the language of the exception in Neb. Rev. Stat. ' 48-816(3)(b) is very specific and we are bound by it.