14 CIR 118 (2002).  Appeal Dismissed March 23, 2004.  

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

     International Union of Operating Engineers Local 571, AFL-CIO (hereinafter, "Petitioner" or "Union") filed an Amended Petition on May 1, 2002, seeking to establish a collective bargaining unit comprised of all regular full-time and part-time employees in the Cass County Department of Roads, excluding supervisors and clerical employees. Cass County filed an Amended Answer on May 14, 2002, asserting as an affirmative defense that five positions at the Cass County Department of Roads (District One Foreman, District Three Foreman, Maintenance Supervisor, District One Assistant Foreman, and District Three Assistant Foreman) (hereinafter, the "five positions") are considered supervisors under Neb. Rev. Stat. § 48-816(3) (Reissue 1998), and therefore, should be excluded from the proposed bargaining unit.

    The Commission held a hearing on June 17, 2002, to determine the said issue.

    We confine our analysis to the sole issue presented by the parties at Trial: whether these five positions are supervisory positions under Neb. Rev. Stat. § 48-816(3) (Reissue 1998). Section 48-816(3) provides, in relevant part, that:

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 merely routine or clerical in nature, but requires the use of independent judgment.

    This statutory definition is disjunctive and therefore, to be classified as a supervisor, an employee need only have one of the types of authority specified in the statute. See Rodeo Telephone, Inc. v. Rodeo Telephone, Inc. Supervisory Employees Ass'n, 9 CIR 111 (1987); Communications Workers of America v. City of Hastings, 3 CIR 4 (1974); and 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).

    The applicable rules for determining who is a supervisor were originally set forth in Nebraska Correctional Officers Union v. Nebraska Department of Correction Services, 4 CIR 70, 71-72 (1979) and again in Omaha-Douglas County Health Department Employees Association v. Omaha-Douglas County Health Department, et al ., 4 CIR 217, 219-220 (1980) as follows:

…The federal law excludes supervisors from employee units, and it is generally held that supervisors should not be included in a collective bargaining unit. See 48 Am. Jur. 2d, Labor and Labor Relations, SS 454, p. 331. Supervisors are defined in the federal laws as any individual 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 of a merely routine or clerical nature, but requires the use of independent judgment. Title 29 U.S.C.A., SS 152(11), p. 233; 48 Am. Jur. 2d Labor and Labor Relations, SS 422, p. 306. (quoting City of Grand Island v. American Federation of State, County, and Municipal Employees, 186 Neb. 711, 185 N.W.2d 860 (1971).

    These rules were codified with the enactment of 48-801(9) in 1985, defining a supervisor as adopted by the Supreme Court in City of Grand Island v. AFSCME, 186 Neb. 711, 185 N.W.2d 860 (1971).

    In further defining supervisors, the Commission and the National Labor Relations Board 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.'" Neligh Ass'n Group v. City of Neligh, 13 CIR 305, 307-308 (2000) (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 280-81 (1974)). 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, 80^th Cong., 1^st Sess. 4 (1947). Consistent with the language and purpose of the definition's independent judgment requirement, the NLRB 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). The NLRB also has concluded that 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, none of the five positions (District One Foreman, District Three Foreman, Maintenance Supervisor, District One Assistant Foreman, and District Three Assistant Foreman) in the Cass County Department of Roads are statutory supervisors.

District One Foreman and District Three Foreman

    Both the District One Foreman (Pat Farris) and the District Three Foreman (Mike Stubbendeck) run the day-to-day operations of their respective road crews. Farris has eight men working under him. The foremen receive their work assignments from the Road Superintendent, Randy Wilkins, in accordance with a One-/and six-Year Road Plan. The Plan has a preset priority order in which to perform the jobs. The Road Superintendent (Randy Wilkins) and the County Commissioners create the One-/and Six-Year Plan. The foremen are responsible to manage the proper performance of the work assigned; however, in actual performance of the work the foremen’s duties differ little from those of the other crewmembers. The foremen’s supervisory activities in carrying out the work are essentially routine and ministerial such as determining how much rock is needed for a particular job. Both foreman have no authority to hire, fire, suspend, lay-off, recall, promote, discharge, reward, or discipline employees. Although they do fill out performance appraisals and do other limited paper work, these functions are routine in nature. When the exercise of supervisory authority by an employee is of a routine nature, such employee should not be excluded as a supervisor in determining an appropriate bargaining unit. International Brotherhood of Electrical Workers, Local 1250 v. Northwest Rural Public Power District, 5 CIR 74 (1980).

    On a fairly regular basis, both foremen transfer employees between the two units to aid in completing large jobs. This transferring of employees is usually done only with approval from Road Superintendent Wilkins. However, when the approval of Road Superintendent Wilkins is not sought, such transferring of employees is of a routine nature and integral to the functioning at the job site.

    While the foremen here have some limited supervisory authority, we do not find that such authority is more than routine or is such as to render them supervisors under the tests applied by our decisions and those of the Nebraska Supreme Court. Nor are their interests so conflicting with those of other employees as to warrant their exclusion from the bargaining unit. The purpose for excluding supervisors from being in units with those whom they supervise is to minimize potential conflicts of interest. See Nebraska Ass’n of Pub. Employees v. Nebraska Game & Parks Commission, 197 Neb. 178, 247 N.W.2d 449 (1976). Farris and Stubbendeck are more closely aligned with labor than with management. Both are paid as hourly employees, whereas Road Superintendent Wilkins is a salaried employee. Including Farris and Stubbendeck in the bargaining unit will not create a conflict of interest, as they have no policy-making authority. Neither Farris nor Stubbendeck possesses § 48-801(9) supervisory authority. Therefore, both foremen should be included in the bargaining unit.

Maintenance Supervisor

    The Maintenance Supervisor (Alan Vogler) has three full-time employees and one part-time employee under his supervision. Vogler inspects the asphalt in Cass County and his crew floats between the various districts performing general maintenance on the roads, such as sign maintenance. Vogler does not possess the authority to hire, fire, suspend, lay-off, recall or promote. Vogler has in the past transferred several of his employees to other districts to assist in finishing projects. This transferring of employees did not require the use of independent judgment because it was routine in nature. In fact, Vogler stated that as part of their general job duties as the "floating crew", they are obligated to assist the other districts.

    The maintenance crew’s typical day-to-day work is centered on complaints from the public received by the Road Supervisor or his clerical staff. Road Superintendent Wilkins typically prioritizes these complaints. Then the maintenance supervisor instructs the other maintenance crew on the priorities for the day.

    To the extent that Vogler directs other employees, his direction is routine in nature. On a daily basis, the maintenance supervisor performs the same work as his crewmembers. After careful review of the facts, it is clear that Vogler does not possess § 48-801(9) supervisory authority. Therefore, the maintenance supervisor should be included in the bargaining unit.

    Both the District One Assistant Foreman (Robert Campbell) and the District Three Assistant Foreman (Dale Beckmann) do not possess the authority to hire, fire, suspend, promote, lay-off, recall, discharge, reward, or discipline employees. Neither assistant foreman uses independent judgment in assigning work when his respective foreman is absent. Both Campbell and Beckmann fill in for their respective foremen only when they are on vacation, or sick leave, which accounts for approximately ten percent (10%) or less of the time.

    Campbell and Beckmann are more closely aligned with labor than with management. They are both paid on an hourly basis, as are the other employees on the road crew. While they are paid an additional 50 cents an hour for their duties as acting foreman in their foreman’s absence, this increase in pay is for their additional responsibilities of talking with the public and making sure the projects are finished. With this increase in responsibility, they do not exercise any independent judgment to responsibly direct employees. To the extent that they direct other employees, their direction is routine in nature. On a daily basis both the assistant foremen work alongside the rest of each district’s road crew employees. Neither Campbell nor Beckmann possesses § 48-801(9) supervisory authority. Therefore, both assistant foremen should be included in the bargaining unit.

    Another factor to which we have given some weight in reaching this decision as to the foremen, assistant foremen, and maintenance supervisor, is Petitioner’s undisputed supervisory structure compared with the number of employees in the work force. Testimony at trial indicated that the Cass County Department of Roads employs twenty-three road crew employees, five of which the Respondent claims are supervisors. If we were to add the 2 foremen, 1 maintenance supervisor, and 2 assistant foremen as supervisors, there would be a ratio of 5 supervisors to 18 non-supervisors in the entire work force. We have in the past given weight to such ratios in finding that employees are not supervisors. See International Brotherhood of Electrical Workers, Local Union 1250, AFL-CIO v. Northwest Rural Public Power District, 5 CIR 74 (1980). While not at all conclusive, we believe the ratios are entitled to some weight in this case in determining the decree of supervisory authority required at the foreman, maintenance supervisor, and assistant foreman level.

    As indicated previously, all five positions work not only in their own districts or departments, but also assist in other county districts in the Road Department. Given the highly integrated nature of the Cass County Road Department and the widespread interaction between the county employees, the Commission finds that the bargaining unit including the foremen of both districts, the maintenance supervisor, and the assistant foremen is an appropriate unit. 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 Ass’n 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).

    The Commission hereby finds that the District One Foreman, the District Three Foreman, the Maintenance Supervisor, the District One Assistant Foreman, and the District Three Assistant Foreman of Cass County Department of Roads are not supervisors. The appropriate bargaining unit consists of:

All regular full-time and part-time employees in the Cass County Department of Roads, excluding supervisors and clerical employees.

A secret ballot election within the above-described unit be conducted within a reasonable time from the date of this decision.

All panel judges join in the entry of this Order.

Entered August  13, 2002.