1 CIR 32 (1971)



In The Matter of the | CASE NO. 32
a Municipal Corporation, |
Petitioner, |
UNION, LOCAL 112 of |
Petitioner, and | DECISION AND ORDER
Petitioner. |

April 5, 1971


This case came on for hearing on January 21-22, 1971, on the joint Petition of the respective parties. Evidence was adduced, oral arguments were presented and certain "Reference Material" was filed by the City of Omaha.

From the pleadings, evidence and arguments submitted, the Court concludes that an industrial dispute exists and that the Battalion Chiefs of the Omaha Fire Department and the Captains of the Omaha Police Department should be excluded from the employee collective bargaining units. This decision is based on the following findings of fact and conclusions of law:


The City of Omaha, hereinafter called City, and the Omaha Police Union, Local 112 of the International Brotherhood of Police Officers, hereinafter called Police Union, have negotiated a collective bargaining agreement, as authorized by the provisions of Section 48-816, R.S. Supp., 1969, containing wages, terms, and conditions of employment. The parties have disagreed, however, with regard to the employee bargaining unit. The Police Union contends that Police Captains should be included in this employee unit, and the City contends that they should not.

The City has also negotiated a collective bargaining agreement with the Omaha Association of Firefighters, Local 385, affiliated with the International Association of Firefighters, AFL-CIO-CLC, hereinafter called Firefighters Union, which provides wages, terms, and conditions. The City and the Firefighters Union have also disagreed regarding the composition of the employee bargaining unit, and this difference of opinion concerns the status of the Battalion Fire Chief and the equivalent ranks of Communication Supervisor, Fire Instructor, Chief Arson Investigator, Fire Equipment Supervisor, and Fire Marshall. The Firefighters Union argues that these officers should be included in the employee bargaining unit, and the City contends they should be excluded.

Sections 48-810 and 48-811, R.S. Supp., 1969, provide that the jurisdiction of the Court of Industrial Relations may be invoked in certain industrial disputes and Section 48-801 (7), R.S. Supp., 1969, provides that an "industrial dispute shall include 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 or refusal to discuss terms or conditions of employment." The bargaining unit dispute presented herein is clearly an industrial dispute within the definition of the afore-described statutes and this Court has jurisdiction.


Fire Department

There are 456 firemen working in the Fire Division for the City of Omaha. The Division operates three shifts with 152 men employed on each shift. Other than the Chief of the Division, there are three Assistant Chiefs, fifteen Battalion Chiefs, and five bureau heads, the Fire Marshall, Fire Instructor, Chief Arson Investigator, Chief of Communications, and Fire Equipment Supervisor. One Assistant Chief is on duty at all times (they also operate on twenty-four hour shifts and three Battalion Chiefs are assigned to each fire district). The Chief, three Assistant Chiefs, and the bureau heads attend staff meeting of the Omaha Fire Department; the Battalion Chiefs do not.

The Battalion Chiefs make recommendations with regard to applicants for positions in the Fire Division; they can relieve a man from duty pending disposition by the fire Chief; they issue verbal or written reprimands to Fire Department personnel; they have exclusive authority to assign employees for overtime work; and they grant vacation or leave time. While on duty, they reside in one of the fire stations in their district, and they generally enjoy separate living quarters within that fire station. They are in charge of all men and equipment within their district, give orders to the men through the Captain, and, in the event of a first alarm fire, they make judgments as to equipment location and strategy at the fire. They have a car and an aide assigned to them, and their job is a mental job as distinguished from the task of the captains and fire fighters, which is physical. One of them serves temporarily as Assistant Chief when the Assistant Chief or Chief is sick, on vacation, or out of town, and they can, under certain circumstances, serve temporarily as the Chief of the entire division. They establish certain policies within their district, such as in the pre-planning of strategy and procedure to be used at a specific site in the event of a fire; they resolve grievances; they grant leave time and time off from work for those employees within their district; and they have authority to transfer men to different stations and companies within their district.

Omaha has a total of fifteen fire stations, one in district 1,four in district 2, four in district 3, two in district 4, and four in district 5. The Battalion Chief, at least once a week, must make an inspection of each of the stations within his district. When he arrives at the station, the men are required to stand at attention. His responsibility with regard to these inspections is to make sure that the station is clean, the equipment serviceable, and all apparatus in good operating condition. The Battalion Chief has the responsibility for scheduling of work and training of all men within his district, and he wears a uniform which is distinct and different from that worn by the men under his supervision. He administers and enforces the rules, regulations, and policies of the Fire Division, is in charge of each company within his District, and he determines and plans the duties of each of these companies.

The Battalion Chief plays a significant part in the promotion of a fire fighter to Captain inasmuch as he observes the Captain during his six-month probationary period and then makes a recommendation to the Division Chief as to whether or not the man should be promoted.

In his relationship with the men under this supervision, the Battalion Chief will be required to interpret the language of the collective bargaining agreement, and he must do this consistent with the best interests of the City of Omaha.

The bureau heads do not engage in fire fighting duties and are responsible directly to the Chief of the Division. Presently, three of the bureau heads are Battalion Chiefs and two are not (Fire Marshall, who is paid more than a Battalion Chief, and the Communications Supervisor, who is paid less). By attrition, the bureau head titles will eventually be eliminated and all these positions will then be filled by Battalion Chiefs. The bureau heads have authority to issue written reprimands and relieve a man of duty for an infraction of the rules. They have authority to permit employees assigned to their bureau to work overtime, and they grant leave time and sick leave. They schedule vacations and they adjust complaints and grievances among the employees under their supervision. Under the new jobs specifications, the Battalion Chief must be able to operate any of the bureaus.

There are presently some lieutenants in the Omaha Fire Department, but this office is being eliminated by a process of attrition. Eventually there will only be a Fire chief, Assistant Chiefs, Battalion Chiefs, Captains, and Fire Fighters. The bureau heads and lieutenants will have been eliminated.

Police Department

There are 624 uniformed officers in the Omaha Police Division. The Chief of Police is the ranking officer in the Division, and there are four Deputy Chiefs and ten Captains. The remainder of the police force consists of Lieutenants, Sergeants, and Patrolmen. The Department is organized into four bureaus with a Deputy Chief in charge of each bureau. Each of the ten Captains has uniformed personnel under his supervision and some of them also have civilian personnel responsible to them. The number of policemen supervised by each Captain varies with one Captain (on the C detail-4:00 p.m.to midnight) having 101 men under his direct supervision. The Police Captains work almost exclusively in the police headquarters and rarely venture into the field. Their work is characterized as administrative rather than field.

The Omaha Police Captain has the responsibility of assigning the various officers under his supervision and determining which of them should work overtime if this is required. He determines the vacation schedule and leave time for men under his supervision, and he can authorize a day off for any of them upon the proper request. Captains determine the lunch and dinner hours for policemen under their command, make recommendations to the Police Division regarding their manpower and equipment needs, are responsible for maintaining a balance of manpower on their shift, and may relieve a man under their command from duty pending final disposition by the Police Chief. Each uniformed Police Captain has an aide assigned to him.

The Deputy Chiefs work from 7:30 a.m. until 4:00 p.m. or 8:00 a.m. to 4:30 p.m. The Police Chief also works only during the daytime shift, and, consequently, for sixteen hours during the regular day, a Police Captain is the highest ranking officer on duty for the Omaha Police Department.

The Police Captain can issue a written reprimand against any of the men under his command, can adjust any complaints or grievances initiated by the men under his command, and is frequently required to exercise independent judgment in the conduct of his duties. He can administer and enforce the rules, regulations, and policies of the Police Department. The Captain is responsible for the assignment of a coach for a new recruit, and he makes an evaluation of the performance of the recruit, and he makes an evaluation of the performance of the recruit in determining whether or not he should be accepted for permanent status. He has the duty and responsibility to make assignment of the men on his shift. He is at the first level where a man below him may be relieved of duty; he has the authority to allow days off; and he controls the authorization for sick leave. He has authority to allocate additional manpower into a particular area, and his duties and responsibilities include several of the management rights which are specified in the collective bargaining agreement. The Captain interprets the rules and regulations, particularly during the time when he is at the highest ranking officer on duty. His work is primarily administrative as distinguished from field work, and, on occasion, he acts as the Chief of Police.

Traditionally and historically in the City of Omaha Police and Fire Departments, the men receive overtime pay until they reach the rank of Police Captain and Battalion Chief. this traditional policy has been changed in the Police Department (by vote of the people) but still exists with the Fire Department. Also, the Battalion Chief of the Fire Department and the Captain of the Police Department have enjoyed basically the same privileges and have had responsibility for the same duties and functions. The pay structure for the Police Captain and the Battalion Chief is identical and in the organizational structures of both divisions, the Battalion Chiefs and the Police Captains are at the same command level.


This court has recently considered issues similar to the one presented in this case. In Case No. 25, In the matter of the International Association of Firefighters, Local 1015, AFL-CIO, and the City of Fremont , the question was whether or not Fire Captains (including the Fire Marshall) and Fire Lieutenants should be a part of the employee bargaining unit. The Court held that the Lieutenants should be in the unit and the Captains should not. Thus twenty-four firemen (three Lieutenants and twenty-one fire fighters) were designated as the employee unit and five (the Chief, three Captains and a Fire Marshall) were excluded. In the case of the City of Grand Island, Nebraska, and the American Federation of State, County and Municipal Employees, AFL-CIO, et al. (Case No. 24), this Court held that the Chief and the Assistant Chiefs should be excluded from the employee bargaining unit and the Captains and Lieutenants should be included. This resulted in an employee unit composed of twenty-four men (eighteen fire fighters, two Lieutenants and four Captains) and left three officers (two Assistant Chiefs and the Chief) outside the unit. thus, in these two cases the ratio of employees excluded from the unit to the total employee compliment was respectively five out of twenty-nine (Fremont) and three out of twenty-seven (Grand Island). The testimony of Deputy Fire Chief Vernon Van Scoy presents somewhat different figures for the Grand Island and Fremont Fire Departments from those just enumerated, but this difference is not significant. It is a fact, as seen from the testimony in Cases 24 and 25 and from the testimony of Van Scoy in this case, that the Battalion Chiefs in the Omaha Fire Department have more equipment and more manpower under their control than the Fire Chief in either of those two previously mentioned cities.

While there is some contradiction in the testimony regarding the number of uniformed firemen in the Omaha Fire Department, it appears that there are 456 firemen who work three shifts of 152 men each. Other than the Chief, there are three Deputy Chiefs, one for each shift, and fifteen Battalion Chiefs, three for each of the five fire districts. Consequently there is a Deputy Chief on duty at all times and a Battalion Chief in command of each district at all times. If we were to include the Battalion Chiefs in the employee bargaining unit, the ratio of excluded employees from the total number would be four to 456 (one to 114) and if we excluded the Battalion Chiefs, the ratio would be nineteen to 456 (one to twenty-four). In the Police Department, the ratio would be five to 524 (approximately one to 105) with the Captains in the unit and fifteen to 524 (approximately one to thirty-five) with them out. The matter of determining an employee bargaining unit cannot be accomplished by merely applying a preconceived ratio, but these statistics are significant on the issue of balancing the interest of the respective parties and providing that both the municipal employer and its employees are adequately represented in collective bargaining.

The criteria established in Fremont and Grand Island , supra, for applying the public policy provisions of Section 48-802 to industrial disputes of this nature are (1) the public interest in insuring the continuous operational efficiency of the governmental services, and (2) the fundamental purpose of the amendments affected 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.

The duties and responsibilities of the Fire Captain in Fremont , where this Court excluded them from the employee unit, closely resemble the duties and responsibilities of the Battalion Fire Chief and Police Captain in this case. In Fremont , "the Fire Captains oversee the operation of the shift and the station. They see that the assigned work responsibilities of the shift are carried out. They are in control at a fire until the Chief arrives. When the Chief is unavailable, or does not respond to a call because it is not thought to involve a major fire, the Captains are completely in control throughout the fire. Although they have no direct control of hiring, promotion or similar personnel matters, they do prepare periodic personnel evaluation forms for the men working under them and they consult with the chief and the city administrator on these matters. The job description states: 'This is supervisory, skilled fire fighting work in directing the activities of a fire company and fire fighting and in the maintenance of station, apparatus, and equipment.' Captains are selected for this position by competitive examination under the Civil Service system."

In Fremont we were influenced, in separating the Captain from the unit and including the Lieutenant in, by the fact that while the Captain was in charge of the fire, the Lieutenant was "basically a fire fighter" and, in Omaha, it appears that the separation of administrative and field responsibilities is at the level of the Battalion Chief for the Fire Department and the Captain for the Police Department.

In light of the separate living quarters generally provided for Battalion Chiefs of the Omaha Fire Department, we also find applicable the following comments of this Court in Fremont :

"That the City's firemen work and live together as a homogenous unit may be a reason for defining the Fire Captains as an employer representative, both with respect to insuring the continuity of operations and with respect to maintaining that the interests of the municipal employer and its employees are adequately represented at the bargaining table."

Applicable also, since it shows the close similarity between an Assistant Chief of the Fire Department in Grand Island and the Battalion Chief of the Omaha Fire Department and the Captain of the Omaha Police Department, is the following comment from this Court's opinion in the Grand Island case:

"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."

In applying the two public policy considerations established in the previous cases (Fremont and Grand Island ), we have reached the following conclusions:

(1) The Battalion Fire Chief and the Police Captain are at a sufficiently high level in their respective organizational chain of command that they would most naturally identify with management. To leave this officer in the bargaining unit under this circumstance can conceivably place management on both sides of the bargaining table. This circumstance can generate strife in both ranks, labor and management [1], a condition which is not consistent with insuring the continuous operational efficiency of governmental service, or of insuring that both parties are adequately represented at the bargaining table.

(2) The union-management relationship, under certain regularly foreseeable circumstances, is an adversary relationship. Where supervisors, such as the Battalion Fire Chief and Police Captain, are members of the union bargaining unit, they can be placed in an uncomfortable and awkward situation. The Battalion Fire Chief and the Police Captain represent management to their subordinates, yet, as a member of the union, they may treat management as an adversary in certain employment situations. This can create a conflict of interests which is not consistent with insuring the continuous operational efficiency of government service. Where there are divided loyalties at the significantly high level of supervisory authority enjoyed by Battalion Fire Chiefs and Police Captains, the operational efficiency of the government can suffer, and this Court recognized, in the Fremont case, "the importance of avoiding 'divided loyalties,' if possible, insofar as both the management of the operations and the conduct of the collective negotiations are concerned."

(3) The Constitution and By-Laws of the Firefighters Union provides, in Article V, Section 2, that a member may be charged with misconduct. Misconduct is not defined in the local constitution but is defined in Article 15 of the International Constitution and By-Laws, a document that is not a part of the evidence in this case. If so charged, a member is entitled to a hearing, and he may appeal from any decision thereof. Members may be fined and may be suspended (Article VIII). The Constitution and By-Laws of the Police Union also authorizes charges against members for misconduct and lists what shall constitute misconduct (Article X), including the "refusal or failure without justifiable cause to comply with or abide by the provisions of this Constitution or the International Constitution, the valid decisions of any officer or officers of the Local Union, the Local or International Executive Board or the International Union Convention" and "engaging in conduct detrimental to the best interests of the Union....," and "conduct unbecoming a member of the International Union..." If found guilty of misconduct, the member may be reprimanded, fined, suspended, removed from office, or removed from membership (Article XII, Section 6).

This right to fine its members is a traditional and valid prerogative of labor organizations, but, in its application to supervisory personnel, such as Battalion Fire Chiefs and Police Captains, it creates a control by the union over management which could disrupt and interfere with the continuous operational efficiency of governmental service.

(4) The National Labor Relations Act specifically excludes supervisors from the employee bargaining unit and defines as "any individual having authority, in the interests 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 of a merely routine or clerical nature, but requires the use of independent judgment." The National Labor Relations Board and the courts have construed this definition in the disjunctive, so that an employee possessing any one of the outlined authorities would fulfill the requirements of the definition. Eastern Greyhound Lines v. NLRB , 337 F. 2d 84; Furr's Inc. v. NLRB , 381 F 2d 562.

If this definition were applied to the facts of this case, the Battalion Fire Chiefs and Police Captains would clearly be classified as supervisors. Vulcanized Rubber & Plastics Co. , 1961 CCH NLRB 9556, 129 NLRB 151; NLRB v. Ertel Mfg. Corp. , 52 LC 16,687,352 F. 2d 916; J.H. Matthews & Co. v. NLRB , 354 F. 2d 432 (8th Circuit 1965), 52 LC 16, 808. This Court has stated, however, that the Board and Court decisions as to what constitutes supervisors under the National Labor Relations Act are not controlling in cases of this nature presented to this Court, but are relative and informative. They are particularly relative and informative because of the dearth of helpful language in our own statute on this issue and because the Federal Congress likely had some good reason for its conclusion that supervisors should not be a part of the employee bargaining unit.

Senator Taft, in his arguments to the United States Senate in behalf of removing the supervisors from the employee unit Congressional Record, April 23, 1947), stated:

"It is felt very strongly by management that foremen are part of management; that it is impossible to manage a plant unless the foremen are wholly loyal to the management."

The Senator also commented that if supervisors were treated as employees this "would result in the complete disruption of discipline and productivity in the factories of the United States."

Thus, the basis for inserting specific language into the federal law excluding supervisors from the employee bargaining unit could also be the basis for excluding them under the public policy guidelines established by this Court in its interpretation of the Nebraska Statutes. The value of having supervisors "wholly loyal" to their employer is necessary to insure the continuous operational efficiency of governmental service and provide adequate representation to both parties in collective bargaining, and the "disruption of discipline and productivity" would substantially deter the operational efficiency of government service.

Consistent with our previous decisions and the public policy principles and guidelines provided therein, we conclude that the Battalion Fire Chiefs and the Police Captains should remain outside of the employee bargaining unit.


NOW THEREFORE IT IS ORDERED, ADJUDGED, DECREED AND DETERMINED that Battalion Fire Chiefs be excluded from the employee bargaining unit of the Fire Division for the City of Omaha, Nebraska, and the Police Captains be excluded from the employee bargaining unit of the Police Division of the City of Omaha, Nebraska.

1 The word "management" is used here, and throughout the remainder of the opinion, to characterize higher authority in municipal police and fire departments, which, as repeatedly emphasized in the testimony and argument, are modeled along the lines of strict hierarchy of command and authority. There are, however, some differences among the members of the Court as to whether or not we can equate management in private profit oriented business with any particular element in every governmental unit, and, therefore, the reference to management in this opinion is intended to apply only to the particular facts of this case.