Appeal affirmed as modified, 186 Neb 711, 185 N.W.2d 860 (1971).
| IN THE MATTER OF: | | | CASE NO. 24 |
| | | ||
| THE CITY OF GRAND ISLAND, | | | |
| NEBRASKA, | | | |
| | | ||
| Employer, | | | |
| | | ||
| and | | | |
| | | ||
| THE AMERICAN FEDERATION | | | |
| OF STATE, COUNTY AND | | | |
| MUNICIPAL EMPLOYEES, | | | |
| AFL-CIO, | | | |
| | | ||
| Petitioner, | | | FINDINGS OF FACT, |
| | | CONCLUSIONS OF LAW, | |
| and | | | AND ORDER |
| | | ||
| THE INTERNATIONAL | | | |
| BROTHERHOOD OF ELECTRICAL | | | |
| WORKERS, AFL-CIO, | | | |
| | | ||
| Petitioner. | | |
HENATSCH, Judge
This case came on for hearing on May 1, 1970, on the Petition and Answers of the respective parties. A Notice to all employees of the City of Grand Island, and an Order were given by this Court on April 17, 1970. Evidence was taken and written briefs have been filed by all parties to this action. From the pleadings, evidence, briefs and arguments of counsel, the Court makes the following findings of fact, and conclusions of law:
All parties invoke the jurisdiction of this Court to settle a dispute. The City of Grand Island, hereafter referred to as "City" filed a Petition alleging that the City-employer cannot reach agreement with three unions on the issue of an employee unit, or units, which may be appropriate for the conduct of an election or collective bargaining purposes.
The City desires one employee unit involving four departments; namely, Parks and Recreation, Public Safety, Public Works, and Utilities.
The American Federation of State, County and Municipal Employees, AFL-CIO (hereafter referred to as "American Federation") desires an employee unit involving three of the above-mentioned departments; namely, Parks and Recreation, Public Safety, and Public Works, exclusive of the Fire Division which is included in the Public Safety Department (Exhibit 7).
The International Brotherhood of Electrical Workers, AFL-CIO(hereafter referred to as "Electrical Workers") seeks an employee unit of solely the Utilities department.
The International Association of Firefighters, Local 647, AFL-CIO (hereafter referred to as "Firefighters") seeks an employee unit of solely the Fire division, which is one of five divisions in the Public Safety Department.
The Employer and the three unions have stipulated to exclude clerical and part-time employees from an election and collective bargaining. American Federation and the City have stipulated that certain employees in the Parks and Recreation, Public safety, and Public Works departments are supervisors, and should also be excluded from any election and collective bargaining.
We find upon the pleadings and evidence that an industrial dispute exists. Section 48-801(7) as amended, defines an industrial dispute as any controversy concerning terms, tenure or conditions of employment, or concerning "....the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment..." The statutory definition includes this controversy.
In support of the City's claim for a single employee unit, the evidence may be summarized as follows: The City manager is chief executive officer. The department heads of Parks and Recreation, Public Safety, Public Works, and Utilities are directly responsible to him. Also, as shown on the organizational chart (Exhibit 7), the City manager has direct responsibility over the administrative, airport, legal, and public health departments. The airport is presently under the Hall County Airport Authority. The department heads make recommendations to the City manager, and he directs or makes suggestions to administrative help on a day-to-day basis. A management consulting firm was hired to prepare a job classification manual, and all employees are included thereunder. The City sets pay scales applicable to all employees, and attempts to give equal pay for equal work in the various departments. Fringe benefits, consisting of sick leave, vacations, general leave of absences, and medical-surgical insurance apply to all employees. The Police and Fire departments are covered under Civil Service, and retirement plans affecting these two departments do not apply to other employees. Similarly, the City manager determines discipline for everyone not covered by the Civil Service Commission. The City's promotion procedure does not apply to the Police and Fire people, because of Civil Service. There is no inter-change of maintenance men between the departments on a regular basis. Some crews of the Public Works and Utility departments occasionally work side by side in excavating or repairing streets. There is no regular contact between the linemen of the Utility department and various other departments of the City. There is some difference in wages between the departments. Employees in the electric division of the Utilities department are highly skilled because of the hazardous work. The training period for these men is about three or four years. The Utility department people do not interchange with other departments. The Utility department has two main power structures, one in the center of town and one in the southeast part of town. Employees in the Utility department are hourly paid, because of the emergency nature of the work. Other City employees are generally paid on a salary basis. There is more overtime in the Utility department.
The City urges that a prime consideration for a single employee unit, both for voting and for collective bargaining, would be ease of administration, pertaining to negotiations on wages and jobs. Further, the City asserts that "it would be desirable to work with the total of the work force and the financial resources of the City to carry out the duties of the City manager."
The Fire division has two shifts, consisting normally of thirteen men on each shift. These shifts include one assistant chief, two captains, one lieutenant, and nine firefighters. The firemen are on a basic fifty-six hour work week. By agreement the Fire Chief is excluded as a supervisor. The assistant chief can effectively recommend personnel for promotion and pay increases. He can enforce discipline according to the rules and regulations of the Fire department. Also, he assigns personnel and, on occasion, serves in the Chief's capacity. In short, the assistant chiefs have close contact with the Fire Chief. The captains and lieutenants cannot hire or fire. According to the City manager, there have been no instances, during the past ten years, where the captains or lieutenants have suspended or preferred charges against any firefighter for any period of time. The captains and lieutenants cannot promote or reward their men, but they do make some recommendations. Generally, the captains and lieutenants act under direction, and, according to the City manager, have the right to do "a little interpretation" on their own initiative. Recommendations for salary increases in the Fire division come from the assistant chiefs to the Chief and then to the City manager, according to the latter's testimony.
The job duties of the Fire division are completely different from other departments. Every third night, the firefighters sleep at the station. There are two stations. An assistant chief is on duty at one, and a captain at the other. The captain reports by phone to the assistant chief if there are any problems at his station, and the assistant chief comes over to the captain's station if necessary. The men engage in continuous training and drill work. The assistant chiefs make out personnel records on the captains and lieutenants. As a routine matter, the captains and lieutenants complete personnel records involving firefighters under their direction, but the assistant chiefs make basic decisions affecting the firefighters. The department is not large and the assistant chiefs have general knowledge about all the men and their capabilities. Salary increases of firefighters are usually not affected by the personnel record. The firefighters work a 24-hour shift, which is substantially different from shifts of other employees involved in this controversy.
The Electrical Workers disclaim any representation of employees in the Parks and Recreation, Public Safety, and Public Works departments. Similarly, American Federation disclaims any representation of employees in the Utility department. There is no interchange of employees between Utility and other departments. Linemen are subject to hazards because of the nature of their work, such as storms and high voltage problems. Linemen need special knowledge in safety work. Equipment in the Utility department is expensive and technical, and extensive training is needed in operating some equipment. Utility department work is done, as a rule, without contact with other departments.
American Federation holds authorization cards of fifty-five percent of the seventy-nine employees, included in stipulation No. 2, within the Parks and Recreation, Public Safety, and Public Works departments. That union also disclaims any representation interest in the Fire division.
This Court was created to carry out, and make operative, the public policy directive of Section 48-802. This policy includes the continuous, uninterrupted and proper functioning and operation of governmental service.
LB 15 does not amend Section 48-802, but it does give added responsibilities and duties to this Court. In the Matter of International Association of Firefighters, Local 1015, AFL-CIO v. City of Fremont (Case No. 25), two considerations predominate in applying the public policy provisions of Section 48-802 to industrial disputes of this nature; namely, (1) the public interest in insuring the continuous operational efficiency of governmental services, and (2) the fundamental purpose of amendments effected through LB 15 to provide a means for collective agreements in which the interests of both the municipal employer and its employees are adequately represented.
There are no statutory directives which spell out the tests to be applied in determining an employee unit for an election or collective bargaining purposes. Many decisions which define appropriate units have evolved under the National Labor Relations Act. These decisions are helpful, but are not controlling upon this Court in meeting its public policy obligations. Governmental service has been excluded from the purview of the National Labor Relations Act. Section 9(b) of the National Labor Relations Act contains statutory directions with respect to the determination of the unit appropriate for the purposes of collective bargaining under that act. On the other hand, the Nebraska statutes not only do not contain any comparable provisions (as do the statutes of some other states), but section 5 of LB 15 amending section 48-816 merely allows the court "authority.....to conduct studies of problems involved in representation and negotiation, including but not limited to....the problems of unit determination...." We hesitate, at this time, to go beyond the legislative expression in adopting definitive rules for unit determination from the first case before the Court involving the issue of "unit determination".
Nevertheless, as in the Fremont case, the Court has a statutory duty under section 48-810 to settle the industrial dispute. We do this by continuing to rely upon the principal factors of (1) the public interest in insuring the continuous operational efficiency of governmental services as enunciated in section 48-802; and (2) the fundamental purpose of the amendments effected through LB 15 to provide a means for collective agreements in which the interests of both the municipal employer and its employees are adequately represented.
We find that to carry out these purposes and provisions of the Nebraska statutes, there should be three separate employee units for employees of the City of Grand Island. In making this determination from the evidence in the record, we find that there are three separate and relatively independent communities of interests, and that the record is barren of evidence which would indicate that the interests of the City or the public interest would be lessened or impaired by giving recognition to the three units which the employees have requested. This determination gives effect to the language in Section 7 of LB 15, while insuring, in our opinion, the continuous operational efficiency of governmental services and a means for collective agreements in which the interests of both the municipal employer and its employees are adequately represented. We emphasize that this determination is made on an evidentiary record which reveals both three separate communities of interest and an absence of evidence relating to any disadvantageous effects upon the City from a recognition of three separate employee units.
On the record of this case, we hold that the employees in the Fire division have a community of interests which separate them from other employees of the City. We further hold that employees in the Utility department have a community of interests in skills, training, and working conditions which separate them from other employees of the City. The employees of the departments of Parks and Recreation, Public Safety, and Public Works (exclusive of the Fire division) shall constitute a third employee unit for election or collective bargaining purposes.
The issue of managerial personnel in the Fire division remains. We find that the Chief and assistant chiefs should be excluded from the employee unit. The captains and lieutenants should be included. We are mindful of our recent decision in the above-mentioned Fremont case, wherein captains were excluded from the unit. In that case, Fremont had no assistant chiefs. All delegation of responsibilities, supervision, and command went directly from the Fremont Fire Chief to his captains. Consequently, the managerial duties of the Fremont captains required their alignment on the side of management. In the instant matter, the captains and lieutenants have some management responsibilities, but the three assistant chiefs absorb most of the management functions.
The twofold public policy considerations applied in this case, and in the Fremont decision do not preclude the parties involved from agreeing between themselves as to the limits of the employee unit, provided (1) the public interests in the continuous operation of the governmental service, and (2) an effective means for adequate representation in collective agreements, are protected.
The decision herein is based solely on the particular facts of this case, and does not foreclose a different determination based on a different showing of community of interests, or disadvantage to the City involved.
HARRY R, HENATSCH, JUDGE
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED as follows:
1. Employees of the Fire division, excluding the Fire Chief and assistant chiefs, shall be a separate employee unit.
2. Employees of the Utilities department, excluding supervisors, clerical, and part-time employees, shall be a separate employee unit.
3. Employees of the departments of Parks and Recreation, Public Safety, and Public Works (exclusive of the Fire division), and excluding supervisors, clerical, and part-time employees, shall be a separate employee unit.
4. An election shall be held within thirty (3) days from the date of this Order. Notice of the election shall be given to all employees in the various units. The election shall be under supervision of a representative of this Court. The ballots in the three employee units designated by this Order shall give employees in each unit a choice, by yes or no, whether the employees desire to be represented, for collective bargaining purposes, by the particular union claiming a right of representation in that unit.
5. If the parties cannot mutually agree upon the wording of the notice of election, and the ballots, within ten (10) days hereafter, the representative of this Court shall be promptly advised.
6. Eligible employees for the election shall be taken from the last payroll immediately preceding the date of this Order. The list should be alphabetized for each of the three employee units. The employee lists shall be made available to said representative of this Court for a pre-election conference between all parties involved.
JOHN M. GRADWOHL, JUDGE
This case came on for trial, pursuant to order of the Court, on November 8, 1971, on the "Motion For New Election, Severance Election, Delineation of New Bargaining Unit, or Clarification of Representation Authority" filed by the City of Grand Island (hereinafter referred to as the City) and the "Objection To Motion For New Election, Severance Election, Delineation of New Bargaining Unit, or Clarification of Representation Authority" filed by the American Federation of State, County and Municipal Employees (hereinafter referred to as AFSCME). AFSCME orally objected to the trial, alleging that the City's Motion was not a proper pleading; that the issues raised had been previously adjudicated; that issues relating to the appropriate unit must be raised before the representation election in which the City voluntarily took part; and that the City is not a proper party to act at this time on behalf of employees who do not desire to be represented by AFSCME. Evidence was adduced, oral arguments given, and written briefs were filed by the City.
Following the Supreme Court decision in City of Grand Island v. American Federation of State, County and Municipal Employees , 186 Neb. 711, 185 N.W. 2d 860 (1971), this Court ordered a representation election to be conducted on July 1, 1971. Judge Henatsch served as the representative of the Court in conducting the election. A pre-election conference was held. The parties agreed upon the printed form of ballots to be used and agreed upon a list of eligible voters in the respective appropriate units. Following the election, Judge Henatsch filed an Election Report that (1) in the fire department unit, of 26 eligible employees, 23 voted for Local 647, International Association of Firefighters, and none voted "no"; (2) in the utility department, of 60 eligible employees, 52 employees voted in favor of the International Brotherhood of Electrical Workers, 3 employees voted "no", and one ballot was challenged, and (3) in the remaining unit, of 96 eligible employees, 48 employees voted for representation by AFSCME, 24 employees voted "no", and the remaining eligible employees did not vote. The form of the election notices, ballots and election procedures generally resembled those under the National Labor Relations act. The parties were given until July 19, 1971, to file objections to the election with the Court. The Election Report concluded that "If no objections are filed, the Court shall enter an appropriate Order based upon this Election Report." No objections were filed by any party by July 19, 1971. The Court deferred entering an order based upon the Election Report at that time because of the uncertainties as to the nature of exclusive representation and related issues under the Nebraska statutes.
In late July and early August, 1971, 49 employees in the Parks and Recreation, Public Safety (exclusive of Fire Division), and Public Works Departments signed petitions that they did not wish to be represented by AFSCME. The City's Motion was filed on August 30, 1971. At the time of the election, circulation of the petitions, and filing the Motion, the scope and nature of exclusive representation under the Nebraska statutes had not been ruled upon by this Court. On October 13, 1971, the Court determined in International Brotherhood of Electrical Workers v. City of Lincoln , No. 48, that "under the Nebraska statutes, a governmental unit may enter into an exclusive bargaining relationship with a labor organization, but it is not ordinarily required to deal exclusively if it does not choose to do so." It was also determined that "section 48-816 provides that a governmental unit may agree to a secret ballot representation election 'to determine questions of representation for purposes of collective bargaining' but the section does not require that such an election must be held."
We cannot find from the evidence in the record, taken in the context of the recently enacted Nebraska statutes, that the City and AFSCME have voluntarily adopted an exclusive representation relationship. It is true that ordinarily the only purpose served by a secret ballot election is to determine the wishes of employees as to an exclusive representative. We stated in IBEW v. City of Lincoln (p 13), that "If a bargaining representative is to act on behalf of less than all of the employees in the appropriate unit, there would be need to be an open designation of the representative relationship." The secret ballot election procedure in the present case, however, was arrived at shortly after the effective date of LB 15. The actions taken by the parties, as well as by this Court, were in some respects understandably taken without a full appreciation of the differences between the federal and state statutes. Many of these statutory differences are set out in the decision in IBEW v. City of Lincoln . The proper decision for this Court to now take in carrying out the Nebraska statutes is to apply the holding in IBEW v. City of Lincoln that the City not be required to deal exclusively with AFSCME if it does not choose to do so.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that the American Federation of State, County and Municipal Employees, AFL-CIO, be entitled to represent those employees in the Parks and Recreation, Public Safety (exclusive of Fire Division), and Public Works Departments of the City of Grand Island, Nebraska, who authorize it to act on their behalf. In all other respects, the Motion For New Election, Severance Election, Delineation of New Bargaining Unit, or Clarification of Representation Authority is
denied.
JOHN M. GRADWOHL, JUDGE
This matter came on for consideration by the Court on the Motion For Certification of Collective Bargaining Agent jointly filed on December 22, 1971, by the City of Grand Island, Employer, the International Brotherhood of Electrical Workers, Petitioner, and the International Association of Firefighters, Local 647, AFL-CIO, Petitioner, for an order certifying collective bargaining agents for the Utilities Department and Fire Department of the City of Grand Island. The Court, having examined the records in this matter, finds that the allegations in the Motion are correct and that the Order therein requested should be entered by the Court.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that the International Brotherhood of Electrical Workers, AFL-CIO be certified as collective bargaining agent for employees of the Utilities Department of the City of Grand Island, Nebraska, and the International Association of Firefighters, Local 647, AFL-CIO, be certified as collective bargaining agent for employees of the Fire Department of the City of Grand Island, Nebraska.
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