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16 CIR 382 (2009) NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS
Entered October 28, 2009 APPEARANCES:
Before: Commissioners Burger, Orr, and Blake BURGER, C. NATURE OF THE PROCEEDINGS: The International Brotherhood of Electrical Workers, Local Union No. 1597, (“Petitioner”) filed a Petition seeking to certify a bargaining unit consisting of: all permanent full time and regular part time employees of the Respondent, including, but not limited to, those occupying the following classifications: 911 dispatcher, senior 911 dispatcher, communications office manager, deputy assessor, assessor clerk, deputy county clerk, county clerk clerk, extension office manager, sheriff secretary, deputy treasurer, treasurer clerk and excluding all statutory supervisors, law enforcement officers, county attorney secretary, and employees working under the direction of the Highway Superintendent and Weed Superintendent. (the proposed “Bargaining Unit”). Howard County and the Howard County Board of Commissioners (“Respondents”), filed an Answer which included a denial of the appropriateness of the proposed bargaining unit. In their Answer, the Respondents claimed that the deputies in the offices of Clerk, Assessor, and Treasurer are statutory supervisors and confidential employees performing managerial duties, which would render all of these deputies ineligible for inclusion in the unit. The Respondents also asserted that the Sheriff’s Secretary was a confidential employee. Furthermore, the Respondents claimed that unionization would lead to the elected office-holders being forced to rely on employees not of their own choosing and would thus lead to practical difficulties and conflicts of interest. Finally, the Respondents objected to the inclusion of the Extension Office Manager, on the ground that the Respondents believe that she is a managerial employee and therefore ineligible for membership in the unit. The issues presented at trial centered on whether the following eight positions are supervisors and/or confidential employees, and therefore should be excluded from the bargaining unit: 1. Deputy Clerk 2. Deputy Assessor 3. Deputy Treasurer 4. Extension Officer Manager 5. Clerk Clerk 6. Assessor Clerk 7. Treasurer Clerk 8. Sheriff’s Secretary Prior to the hearing, the positions of the 911 dispatchers and senior 911 dispatchers were stipulated to by both parties for inclusion in the bargaining unit. The parties also stipulated to exclude the Communications Office Manager and the 911 Chief Dispatcher/Supervisor. FACTS: The Petitioner proposes to create a bargaining unit from employees working in the offices of the Howard County Clerk, County Assessor, County Treasurer, County Extension Office, and Sheriff. All of these offices are located in the Howard County courthouse. General employment policies for these employees are governed by a personnel handbook established by the Howard County Commissioners. The offices of the Howard County Clerk, County Assessor and County Treasurer are all staffed by three people: an elected office-holder, a deputy and a clerk. The Sheriff’s office is staffed by one secretary and several 911 dispatchers (as well as deputies who are not proposed for inclusion in the bargaining unit). The Howard County Extension Office currently is staffed by one “Howard County” employee (the Extension Office Manager), who works directly with employees from the University of Nebraska at Lincoln. Other relevant facts will be discussed in the analysis of the eight positions in question. DISCUSSION: The issue before the Commission is whether the positions of Deputy Clerk, Deputy Assessor, Deputy Treasurer, Extension Office Manager, Clerk Clerk, Assessor Clerk, Sheriff’s Secretary and Treasurer Clerk should be included in the bargaining unit. Specifically, the question is whether these workers are supervisors and/or classified employees as defined by Nebraska law. Neb. Rev. Stat. §48-801(9) 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 ten 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.” Neligh Ass’n Group v. City of Neligh, 13 CIR 305, 307-308 (2000) (quoting N.L.R.B. 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 N.L.R.B. 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.” N.L.R.B. v. Southern Bleachery & Print Works, Inc. 257 F.2d 235, 239 (4th Cir. 1958), cert. denied, 359 U.S. 911 (1959). 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 Neb. Rev. Stat. § 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 the Commission in an unpublished opinion, relying primarily upon the prior written “comprehensive position questionnaires” of the Conservation Officer Supervisors. The evidence indicated that these questionnaires had originally 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 “supervisory”. 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). In the instant case, the evidence reflects no indication that including any of these positions in the bargaining unit has created any such conflict, or that it will in the future. In the instant case, there are no prior inconsistent statements unlike State Law Enforcement Bargaining Council. We believe the testimony of the deputies directly correlates with their respective supervisors’ testimony. Even the Respondents admit in their brief, that the Howard County deputies do not actually perform many of the duties that they are statutorily allowed to perform pursuant to the applicable statutes. There is no evidence in this case that Petitioner’s statutory authority for any of the deputies to act in the stead of the elected official resulted in any exercise of supervisory authority, or effectively recommending such supervisory authority, nor did the evidence show that any of these deputies used independent judgment. In the instant case we do not find the testimony to be self-serving, but instead find the testimony of both the elected officials and their deputies, consistent. The testimony clearly states that there is no potential conflict of interest. The facts in this particular case consistently show that the deputies do not actually perform the duties of the elected officials in their absence. The statutes designating the deputies to act in the absence or disability of the elected official do not reflect reality in this case. The evidence shows that the deputies do not exercise independent judgment in the absence of the elected officials, and instead carry out the mundane, ministerial tasks of the office. A County Commissioner suggests that the existence of a certified bargaining unit would disrupt efficiency of office operations and limit the discretion of future elected officials to hire and fire. We are unable to connect the dots on this argument. The certification of a bargaining unit provides the members certain rights under the Industrial Relations Act, but insubordination and lifetime tenure are not included within these rights. This argument is, basically, pure speculation. We do not find a conflict of interest that would preclude these positions from being included in the proposed bargaining unit. Confidential Employees The second issue presented by the Respondents is whether these positions are confidential. The guidelines concerning the status as a confidential employee were articulated in Civilian Management, Professional and Technical Employees Council of the City of Omaha, Inc. v. City of Omaha , 6 CIR 460, (August 9, 1982). In this case, the CIR stated that: It is well settled that National Labor Relations Board decisions and promulgated policies are helpful and may be looked to for guidance but are not controlling in making determinations under the Nebraska Commission of Industrial Relations statutes. See City of Grand Island v. AFSCME , 186 Neb. 711, 185 N.W.2d 860 (1971). The National Labor Relations Board has a practice, recently approved by the United States Supreme court, excluding from bargaining units those "'confidential employees...[']who assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations.'" N.L.R.B. v. Hendricks County Rural Electric Membership Corporation, 454 U.S. 170, 102 S. Ct. 216, 220 (1981). In Hendricks County Rural Electric Membership Corporation, the Supreme Court found that the personal secretary of the Respondent was not a confidential employee. The Supreme Court analyzed the N.L.R.B.’s historical application of the "labor nexus" test, and found that the secretary was not in any event such a "confidential employee” because she did not act in a confidential capacity with respect to labor-relations matters. The Supreme Court held that because there was no suggestion that the Board's finding regarding labor nexus was not supported by substantial evidence, the Court of Appeals erred in holding that the record did not support the Board's determination that the secretary was not a confidential employee with a labor nexus. The Respondents have failed to meet the burden of proof to show why these positions should be excluded. The positions in question are not confidential. The evidence showed that confidential information was held in a secure location by their supervisor, and that such confidential information could not be accessed by those employees. None of the employees formulated, determined or effectuated management policies. Therefore, we find there is no evidence in the record to hold that any of these employees are confidential employees. See discussions of the individual positions below. Deputy Clerk The Petitioner argues the Deputy Clerk is not a supervisor or a confidential employee and should be included in the bargaining unit. The Respondents cite Nebraska Rev. Stat. § 23-1301.01 providing that the Deputy Clerk, in the absence or disability of the County Clerk, shall perform the duties of the Clerk pertaining to the office. The Respondents argue that the statute is controlling as to the duties and responsibilities of the Deputy Clerk. As part of the daily duties, the Howard County Deputy Clerk works with the local district court, register of deeds, payroll, and accounts payable. The Deputy Clerk works with two other employees: the County Clerk and the Office Clerk. The Deputy Clerk does not hire or effectively recommend the hiring of any employees. The Clerk runs the day-to-day operations of the office. The Deputy Clerk does not have the authority to transfer, suspend, lay-off, recall, promote, assign, reward, discipline, provide direction, adjust grievances of any of the other employees in the office, nor does she have the authority to effectively recommend any of the above listed supervisory duties. The Deputy Clerk does not have access to any confidential labor-related materials, like performance evaluations, negotiation notes, or proposals. On a day-to-day basis the Clerk’s office works with other offices like the assessor’s office, the extension office and the treasurer’s office. There is no evidence the Deputy Clerk has ever exercised any of the supervisory duties of the County Clerk in the absence of the County Clerk. The Deputy Clerk testified that she did not possess or exercise any of the supervisory powers listed in Neb. Rev. Stat. §48-801(9). The Commission concludes, based upon the specific evidence in this case, that the Deputy Clerk does not actually exercise independent judgment and is not a supervisor under the definition set forth in Neb. Rev. Stat. §48-801(9). The Deputy Clerk is also not a confidential employee, with access to any confidential materials. As stated before, she performs basically ministerial tasks in the presence of, or in the absence of the Clerk. We find that the Deputy Clerk is neither a supervisor, nor a confidential employee, and should be part of the bargaining unit. Deputy Treasurer The Petitioner argues the Deputy Treasurer is not a supervisor or a confidential employee and should be included in the bargaining unit. The Respondent cites the statutory duties of the Deputy Treasurer and asserts it as controlling the issue. As part of her daily duties, the Howard County Deputy Treasurer answers the phone, issues motor vehicle registrations and titles, collects real estate taxes, does monthly book work and writes checks. The Deputy Treasurer works with two other employees: the Treasurer and the Clerk Treasurer. The Deputy Treasurer works under the direction of the employment handbook of Howard County. The Deputy Treasurer does not hire or effectively recommend hiring of any employees. The Treasurer runs the day-to-day operations of the office. The Deputy Treasurer does not have the authority to transfer, suspend, lay-off, recall, promote, assign, reward, discipline, provide direction, adjust grievances of any of the other employees in the office, nor does she have the authority to effectively recommend any of the above listed supervisory duties. The Deputy Treasurer does not have access to any confidential labor-related materials, like performance evaluations, negotiation notes, or proposals. On a day-to-day basis the Treasurer’s office works with other offices like the assessor’s office, the extension office and the clerk’s office. There is no evidence the Deputy Treasurer has ever exercised any of the supervisory duties of the Treasurer in the absence of the Treasurer. The Deputy Treasurer testified that she did not possess or exercise any of the supervisory powers listed in Neb. Rev. Stat. §48-801(9). Furthermore, the Treasurer testified that in her absence, the deputy does not perform supervisor duties but instead only handles duties that are routine in nature. The Commission concludes, based upon the specific evidence in this case, that the Deputy Treasurer does not actually exercise independent judgment and is not a supervisor under the definition set forth in Neb. Rev. Stat. §48-801(9). The Deputy Treasurer is not a confidential employee, with access to any confidential materials. We find the Deputy Treasurer is neither a supervisor nor a confidential employee and should be part of the bargaining unit. Deputy Assessor The Petitioner argues the Deputy Assessor is not a supervisor or a confidential employee and should be included in the bargaining unit. The Respondent cites the statutory duties of the Deputy Assessor and asserts it as controlling the issue. The Deputy Assessor reviews and processes home sales in Howard County. The Deputy Assessor also helps with the day-to-day operations such as dealings with personal property, homestead exemptions, or discussing property valuations with citizens. The Deputy Assessor follows the instructions of the Assessor who supervises the Deputy Assessor and the Assessor Clerk. The Deputy Assessor follows the same Howard County handbook as the other employees in the proposed bargaining unit. The Deputy Assessor cannot hire, fire, develop policies, transfer employees, lay-off employees, recall, promote, assign, discipline, direct or adjust grievances of any of the employees, nor can the Deputy Assessor effectively recommend any of the above actions. The Deputy Assessor does not have access to any confidential employment related materials, like performance evaluations, negotiation notes. The evaluations are kept in a locked box with a combination known only by the Assessor. On a day-to-day basis the assessor’s office works with other offices like the treasurer’s office, the extension office and the clerk’s office. There is no evidence the Deputy Assessor has ever exercised any of the supervisory duties of the Assessor in the absence of the Assessor. The Deputy Assessor testified that she did not possess or exercise any of the supervisory powers listed in Neb. Rev. Stat. §48-801(9). Furthermore, the Assessor testified that in her absence, the deputy does not perform supervisor duties but instead only handles duties that are routine in nature. The Respondents suggested that the Assessor was not a reliable witness because she was sympathetic to union organization. This red herring got into the record when the objection was overruled as premature. Unfortunately, the witness did not answer yes or no, but expanded her response. We find no inconsistency in her factual testimony. We find no suggestion that her purported sympathy for her subordinates desire to exercise statutory rights to bargain collectively for terms and conditions of employment impeaches her testimony. We find no relevance in the email exhibit offered by the Respondent. The Commission concludes, based upon the specific evidence in this case, that the Deputy Assessor does not actually exercise independent judgment and is not a supervisor under the definition set forth in Neb. Rev. Stat. §48-801(9). The Deputy Assessor is also not a confidential employee, with access to any confidential materials. We find the Deputy Assessor is neither a supervisor nor a confidential employee and should be part of the bargaining unit. Office Clerk or “Clerk, Clerk” The Petitioner argues the Office Clerk is not a confidential employee, such that the position should be excluded from the bargaining unit. The Petitioner further argues that the reason confidential employees are excluded from the bargaining unit is that as part of their job, they can gain access to confidential employee records or information regarding labor negotiations. Such information faces a potential conflict of interest in the Office Clerk’s role as a union member versus the Office Clerk’s obligation to keep management employment information secret. The Respondents argue that a confidential relationship exists because of the close physical proximity to the Clerk and the confidential records. The Respondents conclude that it is therefore practical and reasonable that the Office Clerk be classified as a confidential employee. The Office Clerk in the Clerk’s Office records the register of deeds, helps with elections, the issuing of marriage licenses and other general work. The Office Clerk must follow the Howard County Handbook. The Office Clerk stated that the County Clerk runs the office on a day-to-day basis and implements and instructs the two other staff members to follow the office policies and procedures developed by her. The Office Clerk has no access to confidential information as the County Clerk keeps those documents in a locked box in the vault. The County Clerk also testified to this fact. The County Clerk further testified that there would be no inconvenience or issues with keeping confidential employment matters separate and distinct from the Office Clerk’s duties. The Office Clerk is in no respect a confidential employee with access to any confidential materials. We find the Office Clerk should be part of the bargaining unit. Assessor Clerk The Petitioner argues the Assessor Clerk is not a confidential employee, such that the position should be excluded from the bargaining unit. The Respondent makes the same argument concerning physical proximity of desks. The Assessor Clerk answers the office phone, helps with homestead exemption applications, and the measuring of properties. The Assessor Clerk stated that the Assessor runs the office on a day-to-day basis and implements and instructs the two other staff members to follow the office policies and procedures developed by her. The Assessor Clerk has no access to confidential information, which is kept in a locked box in the vault. The Commission concludes, based upon the specific evidence in this case, the Assessor Clerk is not a confidential employee with access to any confidential materials. We find the Assessor Clerk should be part of the bargaining unit. Treasurer Clerk The Petitioner argues the Treasurer Clerk is not a confidential employee, such that the position should be excluded from the bargaining unit. The Respondent makes the same argument concerning physical proximity of desks. The Treasurer Clerk as part of her daily duties waits primarily on citizens who come into the office. The Treasurer Clerk processes motor vehicles licensing and registration, driver’s licenses, real estate taxes, and irrigation assessments. The Treasurer Clerk also mails out motor vehicle data cards, notices, and heavy highway use tax forms. The Treasurer Clerk stated that the Treasurer runs the office on a day-to-day basis and implements and instructs the two other staff members to follow the office policies and procedures which the Treasurer developed. The Treasurer Clerk testified that the Treasurer is the only employee required to make significant independent decisions. The Treasurer Clerk testified that she interacts with the other county offices especially with the assessor’s office in dealing with the real estate taxes. The Treasurer Clerk has no access to confidential information, which the Treasurer keeps in a locked box. The Commission concludes, based upon the specific evidence in this case, that the Treasurer Clerk is not a confidential employee with access to any confidential materials. We find the Treasurer Clerk should be part of the bargaining unit. Sheriff’s Secretary The Petitioner argues the Sheriff’s Secretary is not a confidential employee, such that the position should be excluded from the bargaining unit. The Respondents argue that a confidential relationship exists because of a close proximity to the Sheriff and confidential police reports. The Respondents conclude that because the Sheriff’s Secretary is the only clerical employee working in the sheriff’s office and the Sheriff’s Secretary is in close physical proximity to the Sheriff and the confidential records, it is reasonable that the Sheriff’s Secretary be classified as a confidential employee. The Sheriff’s Secretary, as part of the position’s daily duties, answers the phones, enters and returns “civils”, returns arrest warrants, and attends to general office traffic. The Sheriff’s Secretary has no access to personnel related documents The Sheriff’s Secretary also has daily interaction with the dispatchers. The Commission concludes, based upon the specific evidence in this case, that the Sheriff’s Secretary is not a confidential employee, with access to any confidential materials. We find the Sheriff’s Secretary should be part of the bargaining unit. Extension Office Manager The Petitioner argues the Office Manager for the Extension Office is not a manager and should be included in the bargaining unit. The Respondents argue that if Howard County were to hire an additional person, the current “Office Manager” would be a supervisor of that new employee. The Extension Office Manager as part of the position’s daily work, answers phones, types letters, mails letters, fills out monthly 4-H letters, and shares bug or tree diseases for identification with the extension educator. The Extension Office Manager works with one extension educator regularly and occasionally with two other extension educators that service other counties, including Howard County. The Extension Office Manager works part-time because the County cannot afford to pay an employee for full-time work. The title Extension Office Manager inflates the reality of her duties. The Extension Office Manager performs clerical duties to assist the extension educators. The Extension Office Manager supervises no position. The position performs none of the duties and exercises none of the power described in the statute. The Extension Office Manager is not a supervisor of anyone and should be included in the proposed bargaining unit. THE COMMISSION HEREBY FINDS from the evidence that an appropriate unit shall consist of: All full time and regular part time employees of the Respondents, including, but not limited to, those occupying the following classifications: 911 dispatcher, senior 911 dispatcher, deputy assessor, assessor clerk, deputy county clerk, county clerk clerk, extension office manager, sheriff secretary, deputy treasurer, treasurer clerk, excluding statutory supervisors, law enforcement officers, county attorney secretary, and employees working under the direction of the highway superintendent and weed superintendent. 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 commissioners join in the entry of this order.
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