3 CIR 157 (1976)


NO. 516, |
Petitioner, |
Defendant. |

This matter came on for hearing upon the petition of plaintiff for a secret ballot election among certain employees of the Grand Island Police division for the purpose of determining whether or not the employees desire the plaintiff to represent them exclusively as their collective bargaining agent. The hearing was held on January 7, 1976. The parties elected not to call any witnesses, but submitted their cases on a stipulated set of facts. It was stipulated and agreed by the parties that there were forty (40) persons employed by the City of Grand Island, in its Police Division below the rank of Deputy Chief, who all are sworn police officers. This group of officers constitutes the alleged appropriate bargaining unit of petitioner.

The two issues remaining for the Court's consideration following the trial of the above-entitled action are: 1) whether LB 1402 as enacted by the 1972 Legislature is unconstitutional in that it violates Article III, Section 18, of the Nebraska Constitution and the Fourteenth Amendment of the Constitution of the United States; 2) whether the employees of the Grand Island Police Department holding the rank of captain, lieutenant and sargeant should be excluded from the appropriate bargaining unit either because they are supervisory employees or because they have not requested the petitioner to represent them in collective bargaining.

The enactment of LB 1402 by the 1972 Legislature created a statutory presumption, which is directly applicable to the factual setting of this case. The relevant language is, as follows:

All firemen and policemen employed in the fire department or police department of any municipal corporation in a position or classification subordinate to the chief of the department and his immediate assistant or assistants holding authority subordinate only to the chief, shall be presumed to have a community of interest and may be included in a single negotiating unit represented by an employee organization for the purposes of this act. ยง48-816 R.R.S. 1943.

The Court finds that although the captains, lieutenants sargeants may perform some supervisory duties, they should not be excluded from the appropriate bargaining unit. The rationale behind excluding supervisors from rank and file units is that possible conflicts of interest will be thereby eliminated. Here the statute creates a presumption that a community of interest exists. The Defendant offered no evidence to rebut this presumption.

The evidence did show that the eleven officers in question had expressed their desires against union representation. While the desires of the employees or inclusion or exclusion may be one factor for consideration, here it is not determinative. The reasons given by the officers for their desires to be excluded, were largely the same concerns a nonsupervisory employee could have, ie, a general dislike of unions or a feeling that collective bargaining was unnecessary. These concerns do not rebut a presumption of community of interest. The officers will be able to express their views by voting in a secret ballot election, within the bargaining unit.

The Court, also finds generally that the Defendant's constitutional objections are without merit. To avoid any further delay in these proceedings, the Court had decided to file its full opinion on this issue, at a later date. The Court further finds that an election should be held within the following bargaining unit, which the Court hereby determines to be an appropriate unit:

All persons employed by the City of Grand Island in its Police Division who are sworn police officers below the rank of deputy chief.

It is therefore ORDERED that a secret ballot election be held within a reasonable time from the filing of this Order. Judge Richard L. DeBacker is designated as the Court's representative for the election. The time, place, and manner in which the election will take place, shall be determined by the Court following a meeting with the parties in this action.

Entered March 30, 1976.