|SARPY LODGE NO. 3,|||||CASE NO. 147|
|FRATERNAL ORDER OF POLICE,|||||REP. DOC. NO. 39|
|an Unincorporated Association,||||
|v.|||||OPINION AND ORDER|
|COUNTY OF SARPY, NEBRASKA||||
|and PATRICK J. THOMAS, Sheriff||||
|of Sarpy County, Nebraska,||||
Appearances: For Plaintiff: Dixon G. Adams and
Chris M. Arps
For Defendant: John P. Kelly and
Michael D. Wellman
Before: Judges DeBacker, Kratz and Rudolph
The plaintiff seeks to represent a unit consisting of all deputy sheriffs, jail employees and clerical employees of the "Sarpy County Sheriff's Department." In accordance with the rule, the Clerk has determined that plaintiff has made a sufficient showing of interest to entitle it to an election, and that determination is not challenged.
While this action initially named only the County of Sarpy as a defendant, the plaintiff thereafter joined Patrick J. Thomas, Sheriff of Sarpy County, and the sheriff has made an Answer. The allegations contained in the original Petition are deemed to be directed at both defendants. The defendants assert four defenses:
1. That the Sheriff, and not Sarpy County, is the employer and therefore, the County is not a proper party;
II. That the plaintiff is not "an appropriate bargaining unit " (emphasis supplied) by reason of its having among its membership persons who are not within the unit sought to be represented;
III. That the plaintiff is not "an appropriate bargaining unit " (emphasis supplied) because among its membership are typists, clerks and jailers, in addition to sworn deputies;
IV. That the provisions of 48-816, Paragraph 3, apply only to city police and fire departments and not to county employees.
It would appear that the defendants occasionally use the term "bargaining unit" when, in fact, they mean "bargaining agent."
The evidence is clear that the plaintiff association comes within the definition of a labor organization in Section 48-801. In addition, however, to having among its membership persons who are actively engaged in law enforcement, both in the Sheriff's Department of Sarpy County and in some of the municipalities located in Sarpy County, the plaintiff also has a class of members called "associate," who are described as citizens interested in matters relating to law enforcement. We see nothing about this associate membership which would remove the plaintiff association from the statutory definition mentioned above. In its capacity as bargaining agent, the association, if certified, would in this instance represent only those law enforcement personnel who are members of the unit determined to be appropriate.
While at the time of trial, the evidence showed that both the Sarpy County Sheriff and his chief deputy were members of the plaintiff association, post-trial affidavits by each of those individuals have been filed, accompanied by evidence of their resignations. After due notice, no objection has been made to the consideration of that evidence, and we deem the question of conflict of interest solved by the resignations.
The question of who is the employer of the members of the unit claimed appears to be answered initially by Section 48-801 (4):
"Employer shall mean - - - any political or governmental subdivision of the State of Nebraska---."
We have held that the county is the employer of county employees, AFSCME v. County of Sarpy , Case No. 157, Opinion and Order dated March 30, 1976. In that case we also determined that all fulltime, permanent, non-uniformed employees of the county, excluding elected officials, supervisors and professionals constituted an appropriate unit.
We now hold on the basis of the evidence here concerning the community of interest of the persons employed within the unit claimed, that a unit composed of all deputy sheriffs, except the Chief Deputy, jail employees and clerical employees of the Sarpy County Sheriff's Department, is an appropriate unit.  We do not consider the third paragraph of Section 48-816, R.R.S. 1943, to be involved here. That provision concerns itself with who in a police or fire department is or is not presumed to be a supervisor. The plaintiff has excluded from its claimed unit the Sheriff and his Chief Deputy. The defendants have raised no issue claiming any other employee in the department is a supervisor. There is no evidence that any other person in the unit claimed is a supervisor.
The defendants also raise a question about whether recognition of the plaintiff as bargaining agent for this unit is mandatory. It seems sufficient to point out that following a representation election, if the plaintiff is successful, one will not have recognition but rather certification under 48-838, R.R.S., 1943.
An election will be held within the unit determined appropriate within a reasonable time from the filing of this Opinion. Judge Richard L. DeBacker is designated as the Court's Representative for the election, which will be conducted under the immediate supervision of Janet Stewart Arnold, Clerk of the Court.
Counsel for the parties are directed to meet and confer within ten (10) days following the filing of this Opinion with a view toward agreement on a date, time and place for the election to be conducted, a cutoff date on eligibility and such other procedural questions concerning the election as may arise between them, and thereafter, forthwith to communicate to the undersigned Judge the results of that conference.
Entered April 22, 1976.
The opinion in Case No. 157 could be interpretated to include within the unit if determined appropriate, the clerical employees in the above unit. Such an interpretation is not intended and an amendment to the Order in Case No. 157 will be forthcoming. (Editor's Note: In an order dated April 30, 1976, the above-described unit was clarified as follows; "all deputy sheriffs, jail employees and clerical employees of the Sarpy County Sheriff's Department, EXCLUDING the Chief Deputy,"...)