16 CIR 209 (2008)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 APPEARANCES:

Filed September 25, 2008

Before Commissioners Blake, Orr, and McGinn

BLAKE, C. 

NATURE OF THE PROCEEDINGS: 

School District Number 001, a/k/a Bellevue Public School District, (hereinafter, “Petitioner”) filed a Petition pursuant to Neb. Rev. Stat. §48-816(3) (Reissue 2004), claiming that the Service Employees International Union (A.F.L.- C.I.O.) Local 226 (hereinafter, “Respondent”), pursuant to Rule 12 of the Nebraska Commission of Industrial Relations, requests that the Commission clarify or amend the earlier certification of the food service and paraprofessional bargaining units to remove the alleged supervisory positions of elementary satellite managers, secondary managers, elementary managers and day-care site leaders.

The issues at trial were as follows:

1.  Petitioner’s Issues:

a. Whether the Food Service Managers (Elementary, Satellite, & Secondary) for the Bellevue Public School District can continue to be represented by S.E.I.U. Local 226 given that the bargaining unit also represents non-supervisory food workers.

            b. Whether the Day-Care Site Leaders for the Bellevue Public School District can continue to be represented by S.E.I.U. Local 226 given that the bargaining unit also represents non-supervisory day-care workers.

2.  Respondent’s Issues:

            a. Whether the Elementary Satellite Managers, Elementary Managers, and Secondary Managers for the Bellevue Public School District are supervisory or managerial employees, thereby requiring their exclusion from the bargaining unit represented by the Respondent.

            b. Whether the Day-care Site Leaders for the Bellevue Public School District are supervisory or managerial employees, thereby requiring their exclusion from the bargaining unit represented by the Respondent.

FACTS: 

The Service Employees International Union, Local 226 currently represents all food service and paraprofessional day-care employees in the district. It was first certified by the Commission on May 26, 1995 to represent all regular full-time and part-time paraprofessional aides in the Respondent School District (E1). In additional to the paraprofessional bargaining unit, Local 226 was later certified to represent all regular full-time and part-time food service employees in the Respondent School District, on June 5, 1998 (E2). Both certification orders specifically stated “excluding supervisors”. These bargaining units have always included the positions of Elementary Manager, Elementary Satellite Manager, Secondary Manager, and Day-Care Site Leader in the bargaining unit and the positions have been performed in the same manner since these bargaining units were first certified. 

These parties have recently been before the Commission. In February of 2007, in Case No. 1125, we found that Respondent had violated Neb. Rev. Stat. §48-824(2) as a result of dissatisfaction with an Elementary Satellite Manager’s (Sharon Smith) activities during negotiations. In that case, we found that the Respondent school district presented no credible evidence to support a claim that the district had analyzed the restructuring of the program for operating the Satellite Food Services prior to a negotiations session with Elementary Satellite Manager Sharon Smith. Following that session (prior to the filing of the prohibited practice claim), Ms. Smith was advised by the Respondent that her satellite manager duties would be reassigned to others. The Commission ordered the Respondent to restore Ms. Smith to the title of Elementary Satellite Manager and to increase her pay accordingly. Even though Petitioner stated that it had decided to reorganize the Satellite services in the summer of 2006, there had been no reorganization that affected any of the job classifications involved in this action.  

 The job duties have not changed in these two bargaining units since they were first created. (E6, E8). The evidence was that these four positions do not hire, transfer, suspend, layoff, recall, promote, discharge, reward, or discipline employees. The assignment of employees is clerical or routine in nature. Instead, the food service director and each building principal decide the hours worked, the hiring, and the suspension by all of the managers and employees of food service. Furthermore, each building principal is in charge of disciplining all of the food service employees including the managers, as well as all of the day-care site leaders and the day-care paraprofessionals.

The primary job duty of the Elementary Manager, Elementary Satellite Manager and the Secondary Manager are to prepare food alongside the employees of each food service site. These positions, in addition to preparing food also maintain the inventory and order food when necessary. The food service employees do not maintain the inventory or place food orders. All of these positions are hourly positions.

Day-Care Site Leaders balance the books of the day-care and maintain records of deposits by the parents. The Day-Care Site Leaders and coworkers assist in opening up the day-care site, helping parents with the dropping off of kids, and setting up the daily activities. Day-Care Site Leaders also work as a team with the other paraprofessionals in planning activities.

DISCUSSION:

            The issue before the Commission is whether Food Service Managers (Elementary, Satellite, and Secondary) and Day-Care Site Leaders, for the Bellevue Public School District can continue to be represented by SEIU Local 226. Specifically, the question is whether these workers are supervisors as defined by Nebraska law. 

Neb. Rev. Stat. §48-801(10) defines supervisors as:

“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.”

            The 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 Commission, in State Law Enforcement Bargaining Council v. State of Nebraska, 15 CIR 84 (2005), found that State Conservation Officer Supervisors were not supervisors under the definition of Sec. 48-801, as their duties did not rise to the level of management responsibility, but were routine in nature and that they performed the same work as their fellow Conservation Officers. The Nebraska Court of Appeals reversed, in an unpublished opinion, relying primarily upon the prior written statements of the Conservation Officer Supervisors. These had been prepared for the purpose of obtaining reclassification of the supervisors to raise their pay grade. Each of the Conservation Officer Supervisors completed a questionnaire, in which they proclaimed their supervisory skills and duties. These prior inconsistent statements were heavily relied upon by the Court of Appeals in its Determination that the supervisor’s job was indeed to supervise responsibly.

            The Petitioner introduced the Employee Evaluation form for Sharon Smith, dated April 4, 2006, as impeachment of Ms. Smith. (E15) The evaluation form is a rating system based upon approximately 40 areas of skill and work performance. The evaluation was completed by Ms. Smith’s supervisor, Paige Roberts. Two of the performance areas are of possible relevance, one relating to “leadership” and the other to “staff supervision”. While both criteria are indicated on the form to be essential, in Ms. Smith’s work position, there is no information which could describe the leadership or supervision functions involved. Unlike the clearly contradictory statements by the employees in State Law Enforcement Bargaining Council v. State of Nebraska, there are no clearly contradictory or impeaching statements in Exhibit 15.

             At most, we have job descriptions which provide vague statements regarding leadership and staff supervision. For instance, the Food Service Manager job description, at item 13, provides for organizing, training and supervising kitchen assistants, and at item 16, provides that the manager is to inform the building principal of personnel needs, strengths and weaknesses. It provides for communicating performance expectations to support kitchen staff in supervising their daily performance. The Task Assignments Form, in describing leadership and supervision, states that leadership includes the ability to interact with a group effectively and to guide them to the accomplishment of a task. As to supervision, it includes the ability to give directions and instruct others in the proper use of kitchen tools and operation of kitchen equipment, food preparation and handling and cleaning procedures. (E3)

            As to the Day-Care Site Leaders, there are even fewer responsibility statements and task assignment items that relate to supervising responsibility. (E4) While the Day-Care Site Leaders have additional responsibilities in handling the bookkeeping and money-handling responsibilities, the evidence strongly supports the Day-Care Site Leaders work as part of a team with the other paraprofessionals.

            The Petitioner admits that there have been no changes since certification on June 5, 1998 in the job duties of Elementary Satellite Managers, Secondary Managers, and Elementary Managers. The job duties of the Day-Care Site Leaders have not changed since certification on May 26, 1995. (E6).

            None of the positions in question involve the authority to hire, fire, suspend, layoff, recall or promote. The workers all work side-by-side with others in their workplace. Their direction to the other workers, or supervision of the other workers is routine in nature. They perform the same work as their fellow workers. There is no indication that they have any authority in the discipline or grievance procedures, or provide any evaluations. Any time true supervision is needed, the employees in these four bargaining unit positions act by relaying information to those with supervisory authority.

            The positions in question involve reporting, which is primarily completion of paperwork relating to the kitchen itself, not to supervising the personnel. As to the Kitchen Managers, the evidence does show that they are in charge of their kitchen, but it does little to show that they are in charge of the other kitchen personnel. They are properly classified as lead workers, or foremen, but they are not supervisors pursuant to §48-801(10). They do not participate in employee evaluations, and are subject to the exact same form and manner in which other employees are evaluated. The evidence demonstrates that the same is true of the day-care managers.  

The status of a supervisor is determined by an individual’s duty, 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.” 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).

            Any supervisory activities of the job descriptions in question are routine and clerical in nature to render the employee’s supervisors under the tests applied by our past decisions and/or those decisions of the Nebraska Supreme Court. Nor are the interests of the employees holding those positions so conflicting with those of the other employees already in the bargaining unit 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 Public Employees v. Nebraska Game & Parks Commission, 197 Neb. 178, 247 N.W.2d 449 (1976). There is no indication in this case that including any of these positions in the bargaining unit has created any such conflict or that it will in the future.

The Petitioner has failed to meet its burden of proof to show why these positions should be excluded. The positions in question are not supervisory and should continue to be included within the bargaining unit.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that: 

The Petitioner’s cause of action is hereby dismissed. 

All panel judges join in the entry of this order.