19
CIR 109 (2015)
NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS
FRATERNAL
ORDER OF POLICE LODGE #51,
Petitioner, v. CITY OF
ALLIANCE, NEBRASKA, a Political
Subdivision of the State of Nebraska,
Respondent. . |
) ) ) ) ) ) ) ) ) ) |
|
Case
No. 1369 Representation
Docket 490 FINDINGS
AND ORDER |
March 12, 2015
APPEARANCES:
For Petitioner Gary L.
Young
Keating, O’Gara, Nedved & Peter,
PC, LLO
530
South 13th Street, Ste 100
Lincoln,
NE 68508
For Respondent Jerry L.
Pigsley
Harding
& Shultz P.C., L.L.O.
800
Lincoln Square
121
South 13th Street
Lincoln,
NE 68501
Before Commissioners Lindahl, Spray
and Partsch
LINDAHL, Commissioner
NATURE OF THE CASE
On May 7, 2014, a Petition was filed
by the Fraternal Order of Police Lodge #51 (“Union” or “Petitioner”) seeking an
election for certification as the exclusive bargaining agent for the following
employees of the City of Alliance (“City” or “Respondent”): Sergeant, Police
Officer II, Police Officer I, Dispatch Supervisor, Senior Dispatcher, and
Dispatcher. On May 21, 2014 the Commission determined that Petitioner made the
sufficient showing of interest as required by Commission Rule 10.
Respondent filed its Answer June 2,
2014, stating that the Petition failed to comply with Commission Rule 6(A)(1)
and (3). Additionally, Respondent asserted that the employees cannot be
represented by Petitioner due to lack of community of interest, the prohibition
against guards and non-guards represented in the same bargaining unit, and that
the Dispatch Supervisor should not be placed in the bargaining unit because she
is a supervisor as defined by Neb. Rev.
Stat. § 48-801(14) (2012 Cum. Supp.). Finally, Respondent argued that
the Petition is barred by virtue of an existing collective bargaining agreement
(“CBA”) for two separate groups, and that the Commission lacks subject matter
jurisdiction to alter the two existing CBAs.
On June 5, 2014, Petitioner filed a
Motion to Amend its Petition, which was granted by the Commission on June 11,
2014. Petitioner filed an Amended Petition on June 16, 2014, which corrected
the Rule 6(A)(1) and (3) deficiencies. On June 23, 2014 the Commission
determined that the Petitioner met its Rule 10 showing of interest. Respondent
filed its Amended Answer on June 30, 2014, re-asserting the affirmative
defenses of lack of community of interest, the guard/non-guard prohibition,
that the Dispatch Supervisor is a statutory supervisor, and the Petition is
barred due to the two separate CBAs.
A trial was held on November 24,
2014 to determine whether 1) the above-mentioned job classifications share a
sufficient community of interest to be included in the same bargaining unit; 2)
whether the Dispatch Supervisor is a supervisor and should be excluded from the
unit; and 3) whether the Sergeant, Police Officer I, and Police Officer II
should be in a separate bargaining unit from Dispatchers due to the
Guard/Non-Guard Rule. Respondent also raised two additional issues: 1) whether
the Commission lacks subject matter jurisdiction to alter two existing
collective bargaining agreements by combining employees already covered by
those agreements, and 2) whether Petitioner failed to state a claim upon which
relief can be granted by failing to comply fully with CIR Rule 6(A)(1).
FACTS
Petitioner has been the recognized
bargaining agent for these job classifications for at least ten years.
Petitioner and Respondent have operated with two separate contracts and names
for the employees in question: the Alliance Police Officers Association
Fraternal Order of Police Lodge 51A contract covers the job classifications of
Sergeant, Police Officer I, and Police Officer II, while the Alliance Communications
Officers Association Fraternal Order of Police Lodge 51B contract covers the
Dispatch Supervisor, Senior Dispatcher, and Dispatcher positions. Despite the
two contractual names, both CBAs are negotiated by Petitioner and the employees
are all part of the Fraternal Order of Police Lodge 51.
The Police Officer I is the
entry-level officer position and Police Officer II is the next higher step
position. Police Officers I and II work as patrol officers, responding to
emergency calls, interrogating witnesses and suspects, making arrests, and
assisting citizens. Police Officers I and II prepare reports, conduct
investigations, obtain evidence and prepare cases for filing of charges. Additionally,
a Police Officer II may serve as a shift supervisor in the Sergeant’s absence,
a Field Training Officer, a School Resource Officer, Investigator, or a K-9
Officer.
The Police Sergeant serves as the
shift supervisor for the sworn officers and other assigned staff, and supervises
the scheduling and coordination of small shift changes. The Sergeant reviews
police reports and evaluates arrests to determine whether a subject should be
detained or placed in jail. Sergeants also work as patrol officers, responding
to emergency calls, interrogating witnesses and suspects, making arrests,
assisting citizens, and preparing reports. The Sergeant reports to the Police
Lieutenant.
The Dispatcher and Senior Dispatcher
monitor and answer telephones and radios in the dispatch center, gather
information to transmit or relay to the necessary personnel, and dispatch
police and other response vehicles for emergency responses. Dispatchers also
maintain the radio and telephone communications log, prepare reports and
correspondence, and assist in training new employees. The Dispatcher and Senior
Dispatcher also assist the dispatchers in the neighboring Box Butte County Sheriff’s
office as needed. The Senior Dispatcher may serve as the supervisor in the
Dispatch Supervisor’s absence.
The Dispatch Supervisor performs the
same daily duties as the Dispatcher and Senior Dispatcher and creates the
dispatcher schedule, which is then given to the Police Lieutenant. The Dispatch
Supervisor completes evaluations of a dispatcher’s work performance using the
forms and parameters created by the City’s personnel department. The Dispatch
Supervisor, along with other training officers, conducts on-the-job training
for new hires. The Dispatch Supervisor is listed as the employee that maintains
records for the F.B.I. Audit, Nebraska State Patrol Teletype Audits, NIBRS
reporting system, Annual Report statistics, Alarm statistics, State Accident
report statistics, Cash Register receipt reporting, 911 call reporting and
Positron Database maintenance records; however, the Dispatch Supervisor
testified that these reporting duties can and have been done by Dispatchers or
the Senior Dispatcher. Although the position description for this position shows
that the Dispatch Supervisor “works under the close supervision of the Chief of
Police,” during trial it was determined that in reality the Dispatch Supervisor
reports to the Police Lieutenant.
DISCUSSION
Jurisdiction
Respondent raised two jurisdictional
questions that the Commission must address. First, Respondent argues that the
Commission lacks subject matter jurisdiction to alter existing bargaining
agreements by combining employees covered by two separate agreements. Second,
Respondent argues that Petitioner failed to comply with CIR Rule 6(A)(1) and
thus fails to state a claim upon which relief can be granted.
Subject
Matter Jurisdiction
Neb.
Rev. Stat. § 48-838(1) grants the Commission the authority to determine
questions of representation on behalf of public employees and to certify the
exclusive bargaining agent following a secret ballot election governed by the
rules of the CIR. Under CIR Rule 6(A), a party may file a petition seeking an
election and certification of a labor organization as the exclusive bargaining
agent for an appropriate bargaining unit or to request a determination by the
Commission of the appropriate bargaining unit. CIR Rules 10 and 11 further
detail requirements that a petition include at least a thirty percent (30%)
showing of interest to hold an election and the Commission procedures for said
elections.
Despite the Commission’s authority
to promulgate rules regarding representation petitions, the Commission does not
have jurisdiction to interpret and apply terms and conditions of a collective
bargaining agreement. International
Brotherhood of Electrical Workers Local 1483 v. Omaha Public Power District,
16 CIR 514 (2011). In Transport Workers
of America v. Transport Authority of the City of Omaha, the Nebraska
Supreme Court stated that:
“The CIR performs
an important and vital function in resolving impasses in the public sector. It
is not, however, a substitute for the District Court with regard to existing
and agreed terms, tenure, and conditions of employment. It has not been made a
court by the Legislature. The proper forum to resolve this dispute is the
courts.”
205
Neb. 26, 35 (Neb. 1979).
In support of its argument, Respondent
cites Lincoln Firefighters Ass’n, Local
644 v. City of Lincoln, 19 CIR __ (September 13, 2013), which held that the
Commission did not have jurisdiction to exclude the Fire Equipment Mechanic, a
job classification that was covered by the bargaining agreement, from the proposed
bargaining unit because it would result in altering an existing collective
bargaining agreement. However, Lincoln
Firefighters is distinguishable from the present case. In Lincoln Firefighters, the parties had
negotiated the composition of the bargaining unit, ceased contract negotiations
prior to the filing of the Petition seeking to amend the bargaining unit, and
ratified the contract before the filing of the Counter-Petition which sought to
exclude the Fire Equipment Mechanic from the bargaining unit. Id. In the present case, the parties have
not engaged in any negotiations. Both CBA 51A and 51B were set to expire on
September 30, 2014. The termination clause in both Agreements clearly state
that the contract would automatically renew every year unless either party
provides the other written notification that it wished to terminate or modify
the Agreement no later than 180 days before the contract expired. The evidence
shows that the Union first notified the City in writing on February 26, 2014 of
its wish to modify the two CBAs by combining the Agreements into one, well
before the 180-day notification deadline. The Union reiterated this request
several times before the 180-day deadline passed, and the City did not agree
with the Union’s request to recognize the two groups of employees as one
bargaining group. The Commission has held previously that a change to the
composition of a bargaining unit is a permissive subject of bargaining, whether
the bargaining unit has been certified or voluntarily recognized. Fraternal Order of Police, Lodge 41 v.
County of Scotts Bluff, 13 CIR 270 (2000). Without the City’s agreement to
the scope of the bargaining unit, the Union was left with the option of filing
a petition with the Commission.
In Sidney Educators’ Ass’n v. Sidney Public Schools, 5 CIR 408 (1982),
an incumbent recognized union that was the bargaining representative for
certificated teachers in the school district filed a petition seeking an
election to become certified as the exclusive bargaining agent for those same
employees. The school district objected, arguing that the petition was barred
by virtue of an existing collective bargaining agreement between the parties. Adopting
the National Labor Relations Board doctrine established in General Box Co., 82 N.L.R.B. 678 (1949), the Commission held that a
labor organization which is a party to a contract with the employer is not
precluded from seeking certification as the representative of employees during
the term of that agreement. Sidney
Educators’ Ass’n, 5 CIR at 414-416.
In the instant case, the employees
have been separated into two groups under CBAs 51A and 51B but Petitioner has
been the union recognized by Respondent to bargain for both groups of employees.
Under the General Box Rule,
Petitioner as the incumbent recognized union is not precluded from seeking a
certification election and with it invoking the jurisdiction of the Commission
under § 48-838(1). We therefore find that the existence of a collective
bargaining agreement between Petitioner and Respondent does not preclude
Petitioner from seeking a certification election pursuant to CIR Rule 6(A).
Failure
to State a Claim
Respondent argues that Petitioner
failed to comply with CIR Rule 6(A)(1) and thus fails to state a claim upon
which relief can be granted. CIR Rule 6(A)(1) states in relevant part that
petitions for an election and certification of a labor organization shall
indicate which job classifications are sought to be excluded from the
bargaining unit. In paragraph 10 of its Amended Petition, Petitioner lists the
job classifications to be included in the bargaining unit and that it was “not
aware of any job classifications that it desires to be excluded from the unit.”
Although the Amended Petition did
not specifically exclude any job classifications when describing the proposed
unit, such as the Police Chief or Lieutenant, the bargaining unit description
plainly stated which job classifications Petitioner was seeking to include. It
stands to reason that if a job classification was not among those listed in
paragraph 10 of the Amended Petition, then that job classification is excluded.
We therefore find that Petitioner has complied with CIR Rule 6(A)(1).
Community of Interest
A community of interest must exist
within a group of employees in a collective bargaining unit. American Association of University
Professors v. Board of Regents, 198 Neb. 243 (Neb. 1977). The following
factors should be considered when determining whether a community of interest
exists: mutuality of wages, hours, and working conditions; the duties and
skills of 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. Id.
These factors are not the only factors to be considered, and equal weight need
not be given to each factor. Sheldon
Station Employees Association v. Nebraska Public Power District, 202 Neb.
391 (Neb. 1979).
Neb.
Rev. Stat. § 48-816(3)(b) creates a presumption of a community of
interest for all firefighters and police officers in a position or
classification subordinate to the chief of the department and his or her
immediate assistant or assistants holding authority subordinate only to the
chief, allowing these classifications to be placed in a single bargaining unit.
No evidence was presented at trial to suggest that there is much argument
regarding the community of interest shared between the Police Sergeant, Police
Officer I, and Police Officer II. Based upon this statutory presumption, the
job classifications of Police Sergeant, Police Officer I and Police Officer II shall
be presumed to share a community of interest.
The real issue is whether the
classifications of Dispatcher, Senior Dispatcher, and Dispatch Supervisor share
a strong enough community of interest with the sworn officers to warrant their
inclusion in the same bargaining unit. The evidence presented supports a
finding of a community of interest between the Police Sergeant, Police Officer
I, Police Officer II, Dispatcher, Senior Dispatcher, and the Dispatch
Supervisor. These positions are paid an hourly rate, work 12 hour shifts, and
work out of the same building, the Law Enforcement Center. The employees may be
operating under two separate contracts, but many of the contractual provisions
and policies are the same. As to the extent of union organization, the sworn officers
and dispatchers have all been represented by Petitioner for several years, and
both officers and dispatchers hold leadership positions within the Union, have
voting rights, and hold Union meetings as one group.
There are obvious differences in job
duties and skills between the sworn officers and dispatchers, and the sworn
officers in Alliance are subject to civil service laws which do not apply to
dispatchers. There is some interchange between officers and dispatchers, as
some officers are trained to work as dispatchers and are currently doing so due
to a shortage of dispatch employees. However, dispatchers cannot interchange
with officers unless they are themselves sworn officers. These differences do
not overcome the community of interest shared between the officers and
dispatchers and the policy against undue fragmentation of bargaining units. Any
unit less than departmental size is generally not favored under the Industrial
Relations Act. See International
Brotherhood of Electrical Workers Local Union No. 2025 v. Nebraska Public Power
District, 14 CIR 150 (2003). The public policy considerations of Neb. Rev. Stat. §48-802(1) requires the
Commission to ensure the continuous operation of government services.
Fragmented units interfere with that public policy and should therefore be
avoided whenever possible. International
Brotherhood of Electrical Workers v. State of Nebraska: Nebraska Educational
Television Commission, and the Board of Regents of the Univ. of Neb., 3 CIR
23 (1975). We therefore find that the proposed bargaining unit employees share
a sufficient community of interest to warrant inclusion in the same bargaining
unit.
Supervisors
The next issue for determination is
whether the Dispatch Supervisor is a supervisor and should therefore be
excluded from the proposed bargaining unit. Although we have determined that a
community of interest exists between the sworn officers and dispatchers to
warrant their inclusion in one bargaining unit, Neb. Rev. Stat. § 48-816(3)(a) provides that a supervisor
shall not be included in a single bargaining unit with any other public
employee who is not a supervisor. Section 48-801(14) states that:
“Supervisor means
any public employee having authority, in the interest of the public employer,
to hire, transfer, suspend, lay off, recall, promote, discharge, assign,
regard, or discipline other public employees, or responsibility to direct them,
to adjust their grievances, or effectively to recommend such action, if in
connection with such action the exercise of such authority is not a merely
routine or clerical nature but requires the use of independent judgment.”
To be classified as a supervisor, an
employee needs to possess only one of the enumerated supervisory powers, but
must do so in the exercise of independent judgment. See Fraternal Order of Police Lodge 48 v. County of Saunders, 13 CIR
352 (2001). However, 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 despite
performing those minor supervisory duties. See Neligh Ass’n Group v. City of Neligh, 13 CIR 305 (2000)(quoting N.L.R.B. v. Bell Aerospace Co., 416 U.S.
267, 280-81 (1974)). The status of a supervisor is determined by an
individual’s duties, not by title or job classification, and that employee must
exert the power to act as an agent of the employer and exercise independent
judgment in some way. International
Brotherhood of Electrical Workers Local Union No. 1597 v. Howard County, 16
CIR 382 (2009). Supervisors are excluded from units with those who they
supervise in order to minimize potential conflicts of interest. See Nebraska Ass’n of Pub. Employees v. Nebraska
Game & Parks Comm’n, 197 Neb. 178 (1976).
In the present case, the Dispatch
Supervisor is responsible for scheduling shifts for herself and the other
Dispatchers, training new Dispatchers, and performing some supervisory functions.
However, any supervisory functions that the Dispatch Supervisor may perform do
not rise to the level of ultimate authority over the other Dispatchers. The
Dispatch Supervisor does not use her independent judgment to hire, fire,
transfer, promote, suspend, lay off, recall, discharge, assign, regard or
discipline other employees, adjust grievances or to effectively recommend such
actions. Although she may have the authority to send an employee who is being
disruptive on the job home, this does not amount to having the ultimate
authority to continue or cease that employee’s employment with the City. According
to the Police Chief, any recommendation that the Dispatch Supervisor may give
in regards to an employee receiving a letter of reprimand, whether to retain or
not to retain a trainee, or whether to hire or not hire a candidate is
considered an opinion and is not effective. Training new hires is not exclusive
to the Dispatch Supervisor, and could be conducted by any officer or dispatcher
that is a training officer. As the Commission stated in Fraternal Order of Police Lodge #15 v. City of Norfolk and Norfolk
Police Division, 8 CIR 287 (1986), “the positions in question do not
exercise ultimate authority over the fate of their subordinates. The power to
hire, fire, layoff and promote lies exclusively within the hands of upper
management.” The Dispatch Supervisor does not exercise sufficient independent
judgment to be considered a statutory supervisor under § 48-816(3)(a). We
therefore find that the Dispatch Supervisor is not a supervisor and may be
included in the bargaining unit.
Guard/Non-Guard Prohibition
The next issue for determination is
whether the guard/non-guard prohibition prevents the sworn officers and
dispatchers from being represented by the same bargaining unit. Respondent
argues that the guard/non-guard prohibition applies due to the inherent
conflict of interest recognized in Fraternal
Order of Police, Lodge 41 v. County of Scotts Bluff, 13 CIR 236 (1999).
Petitioner argues that the guard/non-guard prohibition does not apply where
police and dispatchers are fully integrated into the work of law enforcement.
This Commission has held in several
cases that guard and non-guard employees can neither be in the same bargaining
unit nor be represented by the same union. See
Fraternal Order of Police, Lodge 41 v. County of Scotts Bluff, 13 CIR 236
(1999); Nebraska Association of Public
Employees v. County of Richardson, 12 CIR 100 (1994). A guard under this
rule is defined as “any person employed…to enforce against employees and other
persons rules to protect property of the employer or to protect the safety of
persons on the employer’s premise.” County
of Scotts Bluff, 13 CIR at 238. Using the National Labor Relations Board as
guidance, the Commission has stated that the reason for the guard/non-guard
prohibition is “to insure to an employer that during strikes or labor unrest
among his other employees, he would have a core of plant protection employees
who could enforce the employer’s rules for protection of his property and
persons thereon without being confronted with a division of loyalty between the
Employer and dissatisfied union members.” Communication
Workers of America v. Hall County, 12 CIR 53 (1994)(quoting McDonnell Aircraft Corp., 109 NLRB No.
147 (1954)).
We have placed officers and
dispatchers in a single bargaining unit in the past. See Fraternal Order of Police Lodge 48 v. County of Saunders, 13 CIR
352 (2001); Fraternal Order of Police
Lodge 45A v. City of Beatrice, 13 CIR 295 (1999). In City of Beatrice, the Commission held that the lead dispatcher,
public safety dispatcher, and community service officers were an integral part
of Beatrice’s law enforcement team and could lawfully be part of the bargaining
unit with the police sergeant and police officer. The Commission reasoned that
although these positions were not sworn law enforcement officers, they were
“essential links” to the law enforcement team’s efforts to safeguard its
employees and the public and enforce its rules, laws, and ordinances. 13 CIR at
304.
In the present case, the Dispatcher
Supervisor, Senior Dispatcher and Dispatcher are in constant contact and
interaction with the Sergeant, Police Officer II and Police Officer I. Dispatchers
are the life line for the officers, tracking officer’s whereabouts and
dispatching backup for an officer in need. Testimony during trial made clear
the importance of dispatchers to the officers in the field. Dispatchers must
know the officers’ policies, procedures, reporting requirements, and code in
order to effectively do their job. Dispatchers monitor and secure the doors leading
in and out of the police station and can lock down the doors if an incident
should occur. Dispatchers may also detain arrestees if an officer is
temporarily disposed and watch over detainees using restrooms to collect urine
samples for drug and alcohol testing. The evidence presented strongly supports
Petitioner’s contention that the Dispatcher, Senior Dispatcher, and the Dispatch
Supervisor are integral to the law enforcement team in Alliance.
CONCLUSION
We therefore find that an
appropriate bargaining unit shall consist of all employees of the City of
Alliance in the classifications of Sergeant, Patrol Officer II, Patrol Officer
I, Dispatch Supervisor, Senior Dispatcher, and Dispatcher. It is therefore
ordered that a secret ballot election shall be conducted within a reasonable
time from the date of this Order within the above described unit.
IT IS THEREFORE ORDERED that:
1. The
appropriate bargaining unit shall be all employees of the City of Alliance,
Nebraska in the classification of Sergeant, Patrol Officer II, Patrol Officer
I, Dispatch Supervisor, Senior Dispatcher and Dispatcher.
2. A
secret ballot election shall be conducted within a reasonable time from the
date of this Order within the bargaining unit ordered above.
All
Panel Commissioners join in the entry of this Order.