In the Matter of:
| THE FREMONT POLICE | | | Case No. 52 |
| UNION LOCAL 132 OF | | | |
| THE INTERNATIONAL | | | |
| BROTHERHOOD OF | | | |
| POLICE OFFICERS, | | | |
| | | ||
| Plaintiff, | | | FINDINGS AND ORDER |
| | | ||
| vs. | | | |
| | | ||
| CITY OF FREMONT, | | | |
| | | ||
| Defendant. | | |
GRADWOHL,J:
This case came on for trial on September 22, 1971, on the Petition of the Plaintiff and Answer of the Defendant, evidence was presented, and oral arguments given. Following the trial, the sole issues remaining for decision were whether sergeants, detective-sergeants, and detectives should be included within the appropriate employee unit within the Fremont Police Department. The Union conceded that the Fremont police chief, assistant police chief, and captains were managerial or supervisory and, therefore, not within the appropriate unit. The City conceded that patrolmen, dispatchers, dog warden, and record clerks should properly be within the appropriate unit. For the reasons set out below, we determine that, from the evidence in this case, the Fremont sergeants and detective-sergeants are managerial or supervisory and, therefore, not within the appropriate unit, but that the Fremont detective position is within the appropriate unit.
1. The Fremont Police Department consists of a Chief of Police, an assistant chief, two captains, 3 uniformed sergeants, two detective-sergeants, I detective, 17 patrolmen, 2 dispatchers, I dog warden, and 4 record clerks. It operates on three shifts, one commanded by the assistant chief, and the other two by the captains. When the captain is absent - whether for his regular days off, vacation, sickness, or other leave - a sergeant performs the captain's duties. Sergeants are in command of the Fremont Police Department on Sundays.
2. Each uniformed sergeant commands the 5 or 6 patrolmen assigned to his shift. He is responsible for the maintenance of the mobile equipment. His principal function is to travel in the "rove" cruiser and oversee and assist the patrolmen and assign duties and areas to the patrolmen. He inspects the members of his shift, and evaluates the performance of the members of his shift. When the captain is off duty, a uniformed sergeant occupies that position and appoints a patrolman to act for him as sergeant.
3. Detective-sergeants and the detective are operationally within a separate bureau answerable to the assistant chief. The detective bureau is in charge of all investigations from the arrival of a detective on the scene. The patrolmen, or uniformed sergeants, protect the scene, but the detective bureau is the active investigatory arm of the Police Department if an extensive investigation, or a follow-up investigation, is required. The detective-sergeants do not assume the command functions of the uniformed sergeants in the absence of a captain. One detective sergeant supervises the other and the detective, and the other detective-sergeant acts in his absence to run the bureau and supervise the detective. The detective qualified for his position by taking a special examination. Patrolmen are assigned to the detective bureau and perform the same duties as the detective when additional help is needed by the detective bureau,
4. The pay of a uniformed sergeant is $50 per month above that of a patrolman. The pay of a detective is the same as the uniformed sergeant. The pay of a detective-sergeant is $25 per month above that of that of the uniformed sergeants and the
detective. The pay of captains is $25 above that of the detective-sergeants. All officers of the police department take civil service examinations appropriate to their positions, but the sergeant examination has more "supervisory' questions in it. All of the officers take part in a training program, but the captains and sergeants are required to take a 40 hour course on police management which is merely optional with respect to the patrolmen.
5. The evidence is inconclusive with respect to the extent of union organization among the sergeants, detective-sergeants, and detective. One of the detective-sergeants is a union member and was active in holding an election at his home. The evidence was that "some" of the affected officers desire to be within the appropriate unit but that at least two officers did not want to be included within the appropriate unit.
The controlling rules of law are set out in City of Grand Island v. American Federation of State, County and Municipal Employees, 186 Neb. 711, 714-716, 185 N.W. 2d 860, 863-865 (I97 1), as follows:
In determining what is an appropriate bargaining unit under the federal law, consideration has been given to mutuality of interest in wages, hours, and working conditions; the duties and skills of the employees; the extent of union organization among the employees; and the desires of the employees. See, Continental Baking Co. v. Baker's Negotiating Group, 99 NLRB 777; 48 Am. Jur. 2d, Labor and Labor Relations, §446, p. 325; Labor Relations, CCH. Vol 2, para, 2605, p. 6706. We think these factors support a determination that there should be three bargaining units consisting of the utilities department employees; the fire division employees; and the employees of the parks and recreation, Public safety (excluding fire division), and public works departments.
The Court of Industrial Relations found that the chief and assistant chiefs should be excluded from the fire division unit but that the captains and lieutenants should be included. The city contends that the captains and lieutenants should have been excluded from the bargaining unit.
The federal law excludes supervisors from employee units, and it is generally held that supervisors should not be included in a collective bargaining unit. See 48 Am. Jur. 2d, Labor and Labor Relations, §454, p. 331. Supervisors are defined in the federal law as any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility 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. Title 29 U.S.C.A., § 152 (11), p. 233; 48 Am. Jur. 2d, Labor and Labor and Labor Relations, § 422, p. 306.
The fire division consists of the chief, 3 assistant chiefs, 6 captains, 3 lieutenants, and 27 unranked personnel classified as firefighters. An assistant chief is in direct control of each shift while it is on duty. There are two fire stations, and a captain is in charge of the station to which he is assigned while he is on duty. The lieutenants are in charge of the ladder company which is based at Station No. 1. The job specifications for the captains and lieutenants appear to be the same although the education and experience requirements are somewhat different.
The record shows that the captains have general charge of the personnel assigned to their station, and in the event of an alarm are in command until relieved by a superior officer. The lieutenants have similar authority but are not usually in charge of a station. In this respect it may be said that the captains and lieutenants have authority to "responsibly direct" the other firefighters. Although the captains and lieutenants have no authority, generally, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline the other firefighters, it is not essential that they possess such authority to be classified as supervisors.
As we view the record the captains and lieutenants should be classified as supervisory personnel and excluded from the employee bargaining unit of the fire division.
From the evidence, we conclude that there should be one bargaining unit consisting of employees of the Fremont Police Department, including the detective bureau. The evidence in the present record shows a mutuality of interest in wages, hours, and working conditions, and in similar, but not identical, duties and skills of the employees. Both parties tacitly assumed that the detective bureau would be a part of the appropriate unit, but the City contended that all three officers assigned to the bureau were supervisory.
From the evidence, we conclude that the sergeants and detective-sergeants should be classified as supervisory personnel and excluded from the employee bargaining unit of the Fremont Police Department. Each case must be decided on its own evidentiary record. What is determined with respect to the Fremont Police Department may not be applicable to other police departments. As the City of Grand Island decision held, it is not necessary that an employee possess each element of supervisory authority, or that an employee exercise his supervisory authority continuously during his working hours. It is clear that the Fremont sergeants and detective-sergeants have authority to "responsibly direct" other officers of the Fremont police department. Since they possess such authority, they should properly be classified as supervisors.
From the evidence, we conclude that the detective (as distinguished from the sergeant-detectives) does not possess any one of the elements of supervisory authority. We have carefully examined the record of the evidence which shows only that the detective is an especially qualified patrolman who has taken an examination, is assigned to the detective bureau, and who receives an extra $50 per month. The evidence does not show that in any situation, the detective has authority to "responsibly direct" other officers or that he can hire, transfer, suspend, lay off, recall, or do any of the other listed acts. For these reasons, the detective should properly be included within the appropriate employee unit.
During oral argument, counsel for the City stated that once the appropriate unit questions were resolved, the City would voluntarily conduct the election sought in the Union's petition. Counsel for the Union agreed that it would not be necessary, therefore, for the Court to order an election to be held in this instance. Accordingly, no provision is contained in the Order with respect to a representative election.
NOW THEREFORE IT IS ORDERED, ADJUDGED AND DECREED that sergeants and sergeant-detectives of the Fremont Police Department should be, and they hereby are, classified as supervisory personnel and excluded from the employee bargaining unit; and that the appropriate employee unit of the Fremont Police Department should include detectives, patrolmen, dispatchers, dog warden, and record clerks.
Entered and filed this 12th day of October, 1971. Judge Kratz and Judge Nielsen did not participate in the trial of this matter or in the consideration or entry of the Findings and Order.
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