NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

The State Law Enforcement Bargaining Council (hereinafter, "Petitioner" or "Union") filed a Petition on October 13, 2004, seeking an order to clarify or amend a collective bargaining unit comprised of State of Nebraska law enforcement employees as set forth in Neb. Rev. Stat. § 81-1373 (1)(g) holding powers of arrest, including Nebraska State Patrol officers and sergeants, game wardens, fire marshal personnel, and similar classes. The State of Nebraska (hereinafter, "Respondent") filed an Answer on November 3, 2004, asserting as an affirmative defense that six positions in the Game and Parks Commission are considered supervisors under Neb. Rev. Stat. § 48-816(3) (Reissue 1998), and therefore should be excluded from the proposed bargaining unit.

The Commission of Industrial Relations (hereinafter, "Commission") held a hearing on February 11, 2005, to determine the said issue.

The State Law Enforcement Bargaining Council is recognized by the State of Nebraska and certified by the Commission. As the exclusive representative for the Law Enforcement Bargaining Unit set forth in Neb. Rev. Stat. § 81-1373 (1)(g), the State Law Enforcement Bargaining Council currently bargains for eight job positions. These positions consist of the following: State Patrol Trooper, State Patrol Investigation Officer, State Patrol Sergeant, State Patrol Investigation Sergeant, Game and Parks Conservation Officer, Fire Marshal Deputy, Liquor Control Inspector, and State Patrol Carrier Enforcement Officer.

The Game and Parks Commission has a defined organizational chart in their policy manual. The organizational chart starts with the Secretary of the Department, Rex Amack, who heads the Game and Parks Commission, overseeing all of the Game and Parks Commission departments. The Secretary is the ultimate decision-maker on hiring, firing, and discipline within the agency. The Game and Parks Commission is then split into four Assistant Directors for Administration, Parks, Fish and Wildlife, and Affirmative Action. The head of the Fish and Wildlife Division is Kirk Nelson. Under Mr. Nelson there are five Division Administrators for Law Enforcement, Wildlife, Fisheries, Federal Aid, and Realty and Environmental Services. Ted Blume heads the Division for Law Enforcement. The Game and Parks Commission Law Enforcement Division is organized similarly to the Nebraska State Patrol, as it is a para-military division. Under Mr. Blume, there are two Assistant Division Administrators: Craig Stover and Wes Loos. Under Assistant Administrator Stover, there are two Conservation Officer Supervisors for Districts 3 and 5. Under Assistant Administrator Loos, there are three Conservation Officer Supervisors for Districts 1, 4, and 6 as well as a Staff Supervisor. Each of the Conservation Officer Supervisors has between eight and ten Conservation Officers in his district. The Staff Supervisor does not have any Conservation Officers directly under her except during their training, when she does oversee their progress.

The Petitioner desires to place six additional employees into the Law Enforcement Bargaining Unit, which already includes Conservation Officers from the Game and Parks Commission. The additional employees who seek to be placed in the already established bargaining unit consist of five Conservation Officer Supervisors and one Staff Supervisor. The individuals who occupy the five positions of Conservation Officer Supervisor are James Zimmerman, Roger Thompson, Duane Arp, Jerry Pecha, and Thomas Zimmer. The Staff Supervisor position is currently held by Dana Miller. These six positions are not currently part of any other bargaining unit.

The Staff Supervisor position currently occupied by Dana Miller performs different duties than her counterparts (the Conservation Officer Supervisors). Approximately fifty percent of her duties involve the coordination of homeland security for the Game and Parks Commission. She spends approximately five percent of her time training new Conservation Officers, who are employed at the rate of approximately one new trainee per year. The Conservation Officers in training are located in Grand Island, Nebraska and Ms. Miller is located in Valentine, Nebraska. As part of her duties, she performs an evaluation of the training employees that go through the initial training program. After completing these evaluations, she sends them to her supervisor for his input and approval. The rest of her time is spent keeping track of certifications of all the Conservation Officers and Conservation Officer Supervisors, which includes entering and maintaining computer records, setting up training meetings, initiating permit renewals, and serving as a liaison for the wildlife rehabilitation organizations. Ms. Miller has no direct ability to purchase anything greater than three hundred dollars for her divisional area. The vast majority of her expenditures must receive prior approval from her supervisor, Assistant Administrator Loos. The position of Staff Supervisor is an hourly position. In November of 2004, the position changed from an exempt status to a non-exempt status under the new provisions of the Fair Labor Standards Act. The reason Ms. Miller was determined to be non-exempt under the FLSA was because she did not supervise more than two employees on a regular or customary basis. Furthermore, Ms. Miller cannot work more than forty hours per week without the permission of her supervisor. Assistant Administrator Loos or Administrator Blume must approve the majority of her decisions.

The Conservation Officer Supervisors perform a different function under the Law Enforcement Division of the Game and Parks Commission. The majority of the Conservation Officer Supervisors’ duties are performed in the field, often working side-by-side with the Conservation Officers, giving them guidance and direction in their work. Both Conservation Officers and Conservation Officer Supervisors assist in fish and wildlife census and rescue operations. Both write tickets and arrange local meetings to explain regulations, changes, or proposed programs. They also both prepare and present radio and television programs and establish and maintain contact with newspapers and local media. Conservation Officers and Conservation Officer Supervisors assist one another in planning and preparing fair and sports show exhibits. Conservation Officers and Conservation Officer Supervisors work flexible hours, enforce game laws, appear and testify in court, and use confidential informants, who are paid with senior management approval.

Conservation Officer Supervisors review the Conservation Officers’ twenty-eight day reports, making sure the Conservation Officers’ reports are mathematically accurate. Conservation Officer Supervisors can only authorize overtime when those hours are relatively insignificant (one or two hours of overtime) or the Conservation Officer Supervisors’ district has had an emergency, such as a boating accident. However, even in those emergency situations the Conservation Officer Supervisor often relays such information on to his Assistant Administrator. Each year, the Conservation Officer Supervisors perform evaluations on the Conservation Officers in their district. Those evaluations are set up pursuant to supervisory mandates and are thoroughly reviewed and finalized by Assistant Administrators, and sometimes by Administrator Blume as well.

There are also strict guidelines for the authorization of expenditures. The Conservation Officer Supervisors must purchase tires per the state contract guidelines. Purchases totaling more than three hundred dollars must have prior senior management approval. Unless it is a minor press release, senior management must clear all press releases. The Conservation Officer Supervisors have quarterly meetings with their supervisors. In those meetings, the Conservation Officer Supervisors are given information to disseminate to the Conservation Officers, so that everyone is compliant with rules and regulations. Senior management does not consistently follow the Conservation Officer Supervisors’ recommendations. On a regular basis, the senior management makes independent decisions, and then disseminates these decisions on to the Conservation Officer Supervisors to pass along to the Conservation Officers. Examples of such independent decision making occurs when the Administrator chooses where duty stations are to be placed or when large special detail assignments are to occur.

The Conservation Officer Supervisors liken themselves to a working foreman. The observation of the Conservation Officers by the Conservation Officer Supervisors is not a day-to-day occurrence. Sometimes the Conservation Officer Supervisors do not observe the Conservation Officers even once a week and occasionally the Conservation Officer Supervisors will not observe the Conservation Officers even once a month. A Conservation Officer’s work generally requires a greater level of independent judgment much like a State Patrol Officer’s work requires. Conservation Officer Supervisors strictly follow their standard operating procedures, most of which are set forth in great detail by their senior management.

In February of 2003, the Game and Parks Commission attempted, through their senior management, to obtain a reclassification for their Conservation Officer Supervisors in an effort to raise their pay grade. The Conservation Officer Supervisors were asked to fill out a comprehensive position questionnaire. In a supervisory meeting, the Conservation Officer Supervisors were given significant direction as to the information that should be placed in the comprehensive position questionnaire. After the Conservation Officer Supervisors had initially completed their questionnaires, the questionnaires were then passed on to senior management. Administrator Blume instructed the Conservation Officer Supervisors to include all of the staff salaries and value of equipment as part of each Supervisor’s district expenditures. After all of the changes were made by senior management, the comprehensive position questionnaires were sent to the State Personnel Division. In May of 2003, the State Personnel Division denied the Game and Parks Conservation Officer Supervisors a change in pay grade. In October of 2004, the State Bargaining Council filed its petition with the Commission to clarify or amend the bargaining unit.

The Petitioner argues that the six positions are not supervisory and share a community of interest with those law enforcement officers currently included in the bargaining unit, such as the Sergeants of the Nebraska State Patrol. The Respondent argues that the Conservation Officer Supervisors and Staff Supervisor are "supervisors" pursuant to Neb. Rev. Stat. § 48-801(9) and if the Commission finds the positions to be "supervisors," those positions are not exempted under the specific exceptions in Neb. Rev. Stat. §§ 81-1373(1)(g) and 48-816(3)(b) and (c).

We confine our analysis to the two issues presented by the parties at Trial: whether these six positions are supervisory positions under Neb. Rev. Stat. § 48-816(3)(a) (Reissue 2004) and whether the Conservation Officer Supervisors and the Staff Supervisor are considered "similar classes" to be included with the Sergeants in the bargaining unit.

Section 48-801(9) 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. International Union of Operating Engineers Local 571 v. Cass County, 14 CIR 118 (2002). The status of a supervisor is determined by an individual’s duties, not by title or job classification. The employee must exert the power to act as an agent of the employer in relations with other employees and to exercise independent judgment of some nature in order to establish one’s status as a "supervisor."

It is important 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.’" Id. 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)). 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).

Under these standards, it is the Commission’s opinion that none of the six positions (District One Conservation Officer Supervisor, District Three Conservation Officer Supervisor, District Four Conservation Officer Supervisor, District Five Conservation Officer Supervisor, District Six Conservation Officer Supervisor, and Staff Supervisor) of the Nebraska Game and Parks Commission are statutory supervisors as defined in § 48-801(9). Our analysis is as follows:

The Staff Supervisor performs a very different function from the Conservation Officer Supervisors in the Nebraska Game and Parks Commission. Likewise, in analyzing whether or not she is a supervisor, she should be treated separately in order to make such a determination. Staff Supervisor Dana Miller runs the day-to-day operations of the training of new employees for the Game and Parks Law Enforcement Division. However, this function of her job is only a very small portion of her duties. Ms. Miller rarely has face-to-face contact with the new employees in training. While she does perform evaluations of the training employees, those evaluations have distinct parameters for her to follow in assessing each new hire’s abilities. Each evaluation is thoroughly and independently reviewed and often changed by senior management. She does not effectively recommend actions for any of the new employees in training. Ms. Miller does not possess the authority to hire, fire, suspend, lay-off, recall or promote.

Ms. Miller is responsible for managing the proper completion of training and updating certifications. Although she manages this function, her function is routine and clerical 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).

Ms. Miller’s supervisory authority is routine and is not such as to render her a supervisor under the tests applied by our past decisions and/or those decisions of the Nebraska Supreme Court. Nor are her interests so conflicting with those of the other employees already in the bargaining unit as to warrant her 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 Public Employees v. Nebraska Game & Parks Commission, 197 Neb. 178, 247 N.W.2d 449 (1976). Ms. Miller is more closely aligned with labor than with management. Both she and the employees she supervises are paid as hourly employees. Including Ms. Miller in the bargaining unit will not create a conflict of interest, as she has no policy-making authority. Ms. Miller does not possess any § 48-801(9) supervisory authority. Therefore, the Staff Supervisor should be included in the bargaining unit.

While the Conservation Officer Supervisors perform a different function than the Staff Supervisor position, the Conservation Officer Supervisors do not possess the authority to hire, fire, suspend, lay-off, recall or promote. The Conservation Officer Supervisors often work side-by-side with the Conservation Officers. To the extent that the Conservation Officer Supervisors direct the other Conservation Officers, their direction is routine in nature. On a daily basis, the Conservation Officer Supervisors perform the same work as his fellow Conservation Officers. Often those Conservation Officer Supervisors have a relatively high activity report as compared to the Conservation Officers located in their district. The Conservation Officer Supervisor’s main function is to disseminate information to their local Conservation Officers, most notably because of the great distance geographically between the headquarters and the satellite district locations. These Conservation Officer Supervisors relay instructions, follow procedures, conform to contractual language, and perform the routine clerical work of double-checking the math in weekly schedules and in work activity reports. While the Conservation Officer Supervisors do perform evaluations of Conservation Officers, those evaluations have distinct parameters for them to follow in assessing the Conservation Officer’s work. Each evaluation is thoroughly and independently reviewed and changed by senior management. To the extent that the Conservation Officer Supervisors direct other employees, their direction is routine in nature. The fact that an individual is identified as a supervisor, is not necessarily dispositive of supervisory status.

The Petitioner also presented testimony from an Investigative Services Sergeant. The Investigative Services Sergeant, who is currently in the Law Enforcement Bargaining Unit, testified that the position of Conservation Officer Supervisor was very equivalent to his position in the current bargaining unit. Both the Sergeant and Conservation Officer Supervisors write evaluations for their employees and confer with those employees about work. Both also perform comparable acts such as project diary reports in their daily activities. Both the Sergeants and other Nebraska State Patrol personnel in the existing bargaining unit perform joint law enforcement efforts, much like the special duty assignments of the Conservation Officers and Conservation Officer Supervisors. Therefore, the Commission finds that the positions are comparable.

Furthermore, the Petitioner presented a witness who has a significant amount of expertise in the area of job comparability, who testified at trial. The expert witness testified that an essential job function requires 30% to 50% of the worker’s time. The Conservation Officer Supervisors spend the majority of their time performing activities identical to Conservation Officers, such as patrolling, writing tickets, testifying and giving information programs. They spend only a small portion of their time in areas unable to be compared to Conservation Officers. The expert witness also stated that a lot of the job was standard operating procedure, performed without the exercise of independent judgment. It is clear from the entirety of the testimony that the Conservation Officer Supervisors are more closely aligned with labor than with management. After careful review of the facts, it is clear that Conservation Officer Supervisors do not possess § 48-801(9) supervisory authority. Therefore, the Conservation Officer Supervisors should be included in the bargaining unit.

Given the highly integrated nature of the Game and Parks Commission Law Enforcement Division and the widespread interaction between the Conservation Officers and Conservation Officer Supervisors on special duty assignments, the Commission finds that the bargaining unit including the Conservation Officer Supervisors and the Staff Supervisor 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 Petitioner argues that the Conservation Officer Supervisors should be deemed a similar class under the first sentence in Neb. Rev. Stat. § 81-1373(1)(g), which includes both "game wardens" and other "similar classes" of law enforcement personnel. We note that the statute does not specifically refer to the positions of either Conservation Officer or Conservation Officer Supervisor. However, it is our interpretation that the term "game warden" refers to the work that is actually performed by the Conservation Officers and the Conservation Officer Supervisors, even though the term "game warden" is not specifically included in the organizational structure of the Nebraska Game and Parks Commission.

In response to the Petitioner’s argument, the Respondent argues that pursuant to Neb. Rev. Stat. § 48-816(3)(a) all supervisors should be excluded from bargaining units, except for the specific exceptions identified in Neb. Rev. Stat. § 81-1373(1)(g) and Neb. Rev. Stat. § 48-816(b) and (c). The Respondent assumes all supervisory employees not included specifically in such exceptions, are supervisors as defined by Neb. Rev. Stat. 48-801(9) and cannot be included in a bargaining unit with employees that they supervise.

Neb. Rev. Stat. § 48-816(3) provides at subsection (a) that supervisors are not to be included in a bargaining unit with non-supervisors, subject to specific exceptions stated in subsections (b) and (c). Neb. Rev. Stat. § 81-1373(1)(g) specifically requires that the State employees’ law enforcement bargaining unit includes Nebraska State Patrol officers and sergeants, game wardens, fire marshal personnel, and similar classes. It goes on to provide, in the second sentence thereof, that sergeants, investigators, and patrol officers employed by the State Patrol are presumed to have a community of interest and shall be included in the bargaining unit notwithstanding any other provision of law.

The exceptions to non-inclusion of supervisors contained in § 48-816(3)(b) and (c) clearly do not apply. The Respondent argues that § 81-1373(1)(g) provides an additional specific exception to non-inclusion of supervisors, and that Conservation Officer Supervisors are excluded from this exception by the second sentence thereof.

Respondent suggests in its Brief that if the Commission finds the Conservation Officer Supervisors to be statutory supervisors, based on the argument that the Sergeants of the State Patrol and the Conservation Officer Supervisors of the Nebraska Game and Parks Commission are comparable, only then is analysis of the second sentence of § 81-1373(1)(g) applicable to the instant case. In this argument, the Respondent assumes that State Patrol Sergeants are supervisors specifically included in the bargaining unit by statutory construction and that the Conservation Officer Supervisors of the Nebraska Game and Parks Commission are specifically not included in the unit by statutory construction of the second sentence. Respondent relies upon the general principle of construction that the expression of one thing is the exclusion of another, or unius est exclusio alterius. Chapin v. Neuhoff Broad.-Grand Island, Inc., 268 Neb. 520 (2004); State Board of Agriculture v. State Racing Commission, 239 Neb. 762, 478 N.W.2d 270 (1992).

However, the Commission has found, as set forth previously herein, that the Conservation Officer Supervisors and Staff Supervisor positions of the Nebraska Game and Parks Commission are not statutory supervisors. Therefore, the second sentence of

§ 81-1373(1)(g) has no application and the Commission need not construe the extent of any supervisory exception contained therein.

The Commission hereby finds that the positions of Staff Supervisor and Conservation Officer Supervisors of the Nebraska Game and Parks Commission should be included in the bargaining unit set forth in Neb. Rev. Stat. § 81-1373(1)(g).

IT IS THEREFORE ORDERED that the certified bargaining unit for employees of the Petitioner be modified to include the positions of Staff Supervisor and Conservation Officer Supervisor.

All panel judges join in the entry of this Order.

Entered May 4, 2005.