19
CIR 96 (2014)
NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS
HAMILTON
COUNTY EMS ASSOCIATION, IAFF LOCAL 4956,
Petitioner, v. HAMILTON
COUNTY, NEBRASKA,
Respondent. . |
) ) ) ) ) ) ) ) |
|
Case
No. 1341 Representation
Docket No. 470 FINDINGS
AND ORDER |
February 27, 2014
APPEARANCES
For
Petitioner: John E. Corrigan
Dowd Howard & Corrigan, LLC
1411 Harney Street, Ste 100
Omaha, NE 68102
For
Respondent: Rachel K. Boyle
Woods & Aitken LLP
10250 Regency Circle, Ste 525
Omaha, NE 68114
Before
Commissioners Pillen, Blake and Lindahl
PILLEN,
Commissioner
NATURE OF THE CASE
On August 22, 2013, the Hamilton
County EMS Association, IAFF Local 4956 (“Petitioner” or “Union”) filed a
Petition seeking to represent all full-time employees of Hamilton County
(“County” or “Respondent”) in the positions of Emergency Medical
Technician-Basic or Intermediate, Paramedic, Captain-Special Operations, and
Captain-Training Officer within the Hamilton County Ambulance Service (“The
Ambulance Service”), excluding the Department Director, Assistant Director and
part-time employees. On September 9, 2013, the Deputy Clerk reported to the Commission
that Petitioner had filed a sufficient showing of interest to entitle it to an
election.
Respondent
filed its Answer on September 11, 2013, alleging that the proposed bargaining
unit was inappropriate because it excluded part-time employees and potentially other
employees and included employees that Respondent argued were supervisors. On
September 19, 2013, the Petition was amended to include full-time and part-time
employees in the same job classifications as listed in the original Petition,
excluding the Department Director, Assistant Director, and any seasonal, casual
or temporary employees. On September 27, 2013, the Deputy Clerk reported to the
Commission that Petitioner had filed a sufficient showing of interest to
entitle it to an election. In its Answer filed October 9, 2013, Respondent
alleged that the proposed bargaining unit was inappropriate because it did not
include all non-supervisory employees and did not exclude supervisory
employees.
On
December 10, 2013, a trial was held before the Honorable Sarah S. Pillen to
receive evidence and testimony on the matter. Three issues were presented for the
Commission’s consideration: 1) whether Hamilton County EMS Association, IAFF
Local 4956 is a labor organization as defined by Neb. Rev. Stat. § 48-801(7); 2) whether the positions of
Captain-Training Officer and Captain-Special Operations are supervisors as
defined by Neb. Rev. Stat. §
48-801(14) and should therefore be excluded from the proposed bargaining unit;
and 3) whether seasonal, casual, or as-needed employees should be included in
the proposed bargaining unit.
FACTS
Exhibit 503 shows a list of 25
employees of Respondent, 17 of which hold job classifications which Petitioner
contends are appropriate classifications for inclusion in the proposed
bargaining unit. Respondent argues that the appropriate bargaining unit would
include as-needed employees and exclude the Captain job classifications.
The
Ambulance Service has two Captain positions- Captain-Training Officer and Captain-Special
Operations. In the chain of command, the Captains rank below the Director and
Assistant Director of the Ambulance Service. The Captains perform the same
primary functions as the Paramedics and EMTs, such as completing a daily
checklist, responding to emergency and transfer calls, and providing patient
care if paramedic-level care is required. However, each Captain has additional
duties which are specific to each position. The Captain-Training Officer coordinates
and initiates emergency medical and related training for the Ambulance Service.
The Captain-Special Operations handles department statistics, special
situations such as Fire Appreciation Day, and the AED program, ensuring that
all AED equipment across the county is functioning and updated. The Captains are
also responsible for the daybook, or department log book. Captains may also
participate in hiring interviews with the Director and Assistant Director.
Eight employees listed on Exhibit
503 are designated as “as needed” employees for the County. “As needed” refers
to employees that are called in during times of mass casualty, catastrophe, and
other special needs of the department. These employees hold the classification
of Paramedic and EMT. Some of these as-needed employees hold full-time
employment with other County departments as well as entities such as the City
of Grand Island Fire Department.
DISCUSSION
Three issues are before the
Commission for determination: 1) whether Hamilton County EMS Association, IAFF
Local 4956 is a labor organization as defined by Neb. Rev. Stat. § 48-801(7); 2) whether the positions of
Captain/Training Officer and Captain/Special Operations are supervisors as
defined by Neb. Rev. Stat. §
48-801(14) and should therefore be excluded from the proposed bargaining unit;
and 3) whether seasonal, casual, or as-needed employees should be included in
the proposed bargaining unit. We shall make a determination on each issue in
turn.
Labor Organization
To start, Respondent in its
statement of issues questioned whether Hamilton County EMS Association, IAFF
Local 4956 is a labor organization as defined by the Industrial Relations Act
(“IRA” or “Act”). Petitioner argues that it is a labor organization as defined
by statute.
Neb. Rev. Stat. § 48-801(7) defines a
labor organization as “any organization of any kind or any agency or employee
representation committee or plan, in which public employees participate and
which exists for the purpose, in whole or in part, of dealing with public
employers concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work.”
Testimony was received from Mr. Dave
Engler, who currently serves as the Direct Field Services Representative for
the International Association of Firefighters (“IAFF”). Mr. Engler testified to
the IAFF’s status as a labor organization based in Washington, DC, and that the
IAFF currently has approximately 15 locals in Nebraska. Mr. Engler also
testified to the organization campaign with the employees in the Hamilton
County EMS Service in establishing Local 4956, and his intention to engage
Respondent in collective bargaining for wages, benefits, and working conditions
for the employees of Local 4956.
It is clear that the IAFF is a labor
organization as defined under § 48-801(7). The IAFF engages employers
concerning labor disputes, grievances, wages, benefits, and working conditions
for the employees that it represents. Petitioner’s arguments regarding the
status of IAFF and Local 4956 were not disputed by Respondent. Therefore, we
find that Hamilton County EMS Association Local 4956 is a labor organization as
defined by Neb. Rev. Stat. §
48-801(7).
Captain/Training Officer
and Captain/Special Operations
Respondent
argues that both captain positions are supervisors and should be excluded from
the proposed bargaining unit. Neb. Rev.
Stat. § 48-816(3)(a) provides that a supervisor shall not be included in
a single bargaining unit with any employee who is not a supervisor. Section
48-801(14) defines a supervisor as:
“any public
employee having authority, in the interest of the public employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign, reward, 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 of a merely routine or
clerical nature but requires the use of independent judgment.”
An
employee need only possess one of the enumerated supervisory powers but must
use independent judgment when exercising the enumerated supervisory power. See General Drivers & Helpers Union,
Local No. 554 v. County of Saline and County Board of Saline, 13 CIR 418
(2001); Hall County Pub. Defenders Org.
v. County of Hall and the Hall County Bd. Of Supervisors, 12 CIR 227, 240
(1996), rev’d on other grounds, 253
Neb. 763, 571 N.W.2d 789 (1998). In defining supervisors, the Commission has
distinguished between true supervisors, those with “genuine management
prerogatives,” and those employees such as “straw bosses, leadmen, and set-up
men, and other minor supervisory employees” who are entitled to join a
bargaining unit despite performing minor supervisory duties. See IAFF Local 647 v. City of Grand Island,
19 CIR ___ (2013)(CIR Case No. 1334); International
Union of Operating Engineers Local 571, AFL-CIO v. Cass County, 14 CIR 118
(2002); Neligh Ass’n Group v. City of
Neligh, 13 CIR 305 (2000). The statutory definitions must be read narrowly
to ensure that “exemptions from [the Act’s] coverage are not so expansively
interpreted as to deny protection to workers the Act was designed to reach.” Neligh Assoc. Group v. City of Neligh,
13 CIR 305 (2000) (citing Holly Farms
Corp. v. NLRB, 517 U.S. 392, 399 (1996)).
In
the present case, Cathy Sigler, Director of the Ambulance Service, testified
that she gives the Captains the freedom to run their shift as they see fit.
But, if the Captains have a problem, they consult with Ms. Sigler. However, as
corroborated by the testimony of the Captains, EMTs, and Paramedics, the
Captains’ actual actions in running their shift are routine and ministerial.
Neither the Captain-Training Officer nor Captain-Special Operations possess the
authority to hire, transfer, suspend, lay-off, recall, promote, discharge,
assign, reward or discipline other employees or adjust their grievances. Captains
do not create work schedules, direct which employees are “first call” and which
are “back up,” or have authority to transfer employees from shift to shift.
Although they can fill out performance reviews, this function is routine in
nature. The Captains may take part in hiring interviews with the Director and
Assistant Director, but the final authority to hire or fire lies with the County
Commissioners based on the Director’s recommendation. These actions do not rise
to the level of exercising independent judgment. We therefore find that the
positions of Captain-Training Officer and Captain-Special Operations are not
statutory supervisors.
Once
it has been determined that an employee is not a supervisor, the remaining
question is whether a community of interest exists among the employees, which
is sufficiently strong enough to warrant their inclusion in a single unit. American Association of University
Professors v. Board of Regents, 198 Neb. 243 (1977). The Nebraska Supreme
Court has noted the following factors in determining whether a community of
interest exists:
1. Mutuality
of wages, hours and working conditions;
2. Duties
and skills of the employees;
3. Extent
of union organization among employees;
4. Desire
of employees;
5. Public
policy against fragmentation of units;
6. Established
policies of the employer;
7. Extent
of interchange of employees in the proposed bargaining unit; and
8. Statutory
mandate to ensure proper functioning and operation of governmental service.
Sheldon Station Employees Association
v. NPPD, 202 Neb. 391 (1979). These factors are not the only
factors to be considered, and equal weight need not be given to each factor. Id.
The
evidence shows that both the job responsibilities of the Captain-Training
Officer and Captain-Special Operations are more in line with the Paramedics and
EMTs than the Director or Assistant Director. Captains work the same work
schedules, are paid hourly, and receive the same fringe benefits as full-time Paramedics
and EMTs. Captains, Paramedics and EMTs are also eligible for overtime pay,
while the Director and Assistant Director are only eligible for compensatory
time. The Captains, Paramedics, and EMTs testified that Captains respond to
emergency medical calls alongside Paramedics and EMTs. During emergency
response calls, the senior Paramedic on scene first takes charge of the scene,
even if that Paramedic is not a Captain. Captains participate in all daily
tasks identified on the daily checklist during a shift alongside the other
employees. Although the Captain may be responsible for completing of the
daybook entries, the Paramedics and EMTs may also complete entries in the
daybook. If a Captain is absent, the Paramedics and EMTs assume the Captain’s
duties. Finally, the Captains testified that it is their desire to be
represented by Petitioner as part of the proposed bargaining unit.
Under
our analysis, neither the Captain-Training Officer nor the Captain-Special
Operations are statutory supervisors, and both share a strong community of interest
with the other employees of the proposed bargaining unit. We therefore find
that the Captain-Training Officer and Captain-Special Operations should be
included in the bargaining unit.
As-Needed Employees
The final issue for determination is
whether as-needed employees should be included in the bargaining unit. Petitioner
contends that these employees do not share a community of interest with the
proposed bargaining unit and should be excluded. Respondent contends that these
as-needed employees should be included in the proposed bargaining unit, as they
have enough in common with full and part-time employees to create a community
of interest with the bargaining unit.
As with the two Captain positions,
the Commission must determine whether a community of interest exists between
the as-needed employees and the rest of the proposed bargaining unit using the same
Sheldon Station community of interest
factors. Such employees have been excluded in the past for lack of community of
interest. In Nebraska State Council of
Local Unions No. 32, American Federation of State, County and Municipal
Employees v. City of Blair, 4 CIR 210 (1980), the Commission considered the
question as to whether any part-time, seasonal and casual employees should be
included in the proposed bargaining unit. The Commission held that two
librarians should be included in the unit because of their mutuality of
interest in benefits and wages with the bargaining unit despite their working
less than 40 hours a week. All other part-time, seasonal, and casual employees that
worked very limited hours and did not receive fringe benefits were excluded
from the bargaining unit due to their lack of mutuality of interest in wages,
continuous contact, working conditions, duties and interchange with full-time
employees. Id.
In
the present case, the as-needed employees do receive a similar pay rate as
other employees and would be able to interchange with the other employees, as
they would have the same skills and the ability to perform the same duties.
However, testimony during trial showed that these employees very rarely work or
have not worked at all for Respondent since being designated as an as-needed
employee. These employees do not receive benefits unless they work a certain
threshold of hours, do not have continuous contact with other employees, and do
not share mutuality of interest in hours and working conditions due to the
rarity of their schedule. Moreover, if they are called to work there is no
expectation that they must work. Based on this evidence, the Commission finds
that as-needed employees do not share a community of interest with the proposed
bargaining unit and shall not be included.
ELECTION
Petitioner requests an election to
be held to allow eligible employees to determine whether the Hamilton County
EMS Association, IAFF Local 4956 should be certified as the sole and exclusive
collective bargaining agent for members of the proposed bargaining unit. In the
Second Deputy Clerk’s Report to the Commission dated September 27, 2013, it was
reported that the required showing of interest was met. An election shall be
ordered in the below designated unit as soon as practical.
Designation of Bargaining
Unit
The bargaining unit shall be
designated as follows:
All
currently employed full-time and part-time employees of Hamilton County engaged
in emergency medical response to include the positions of Emergency Medical
Technician-Basic, Emergency Medical Technician-Intermediate, Emergency Medical
Technician-Paramedic, Captain-Special Operations, and Captain-Training Officer,
and excluding the Department Director, Assistant Director of said division of
Hamilton County government, and any seasonal, casual or temporary employees of
said department.
IT IS THEREFORE ORDERED
that
1. The
appropriate bargaining unit shall be all currently employed full-time and part-time
employees of Hamilton County engaged in emergency medical response to include
the positions of Emergency Medical Technician-Basic, Emergency Medical Technician-Intermediate,
Emergency Medical Technician-Paramedic, Captain-Special Operations, and Captain-Training
Officer, and excluding the Department Director, Assistant Director of said
division of Hamilton County government, and any seasonal, casual or temporary
employees of said department.
2. This
representation case shall proceed in accordance with Commission Rules regarding
the election and certification of a labor organization. The Commission Clerk
shall coordinate all appropriate procedures with the parties as soon as
practical.
All
Panel Commissioners join in the entry of this Order.