3 CIR 181 (1976)


A Nebraska Non-Profit |
Corporation, |
Petitioner, |
Respondent. |

The Nebraska Local of International Brotherhood of Correctional Officers has petitioned this Court for a unit determination and representation election for certain employees of the Nebraska Department of Correctional Services. The Clerk's Report to the Court, filed in this case on February 27, 1976, determined that petitioner has made a sufficient showing of interest to entitle it to an election. Only the appropriateness of the proposed bargaining unit remains for the Court's determination. AMER. ASSOC. OF UNIVERSITY PROFESSORS v. BOARD OF REGENTS , 3 CIR 150-1 (1975). The Court has proper jurisdiction over the parties and the subject matter.

In addition to the stipulations of the parties, filed on August 6, 1976, a brief evidentiary hearing was held on September 10, 1976. Petitioner has sought to represent "all duly employed correctional officers of the Nebraska Penal and Correctional Complex, reformatory and penitentiary units, Lincoln, Lancaster County, Nebraska except those of the rank higher than lieutenant."

Respondent alleges that the foregoing unit is inappropriate in that correctional officers of the rank of lieutenant are supervisors and should therefore be excluded from the unit, and in addition, that the correctional officers stationed at post-care units should be included within the appropriate bargaining unit. Respondent also alleges that the Representation Petition filed by petitioner fails to state facts sufficient to constitute a cause of actions in that "...it is no where alleged that the petitioner's proposed unit is an appropriate bargaining unit." Rule 4B of this Court sets forth the elements required to state a cause of action in a representation petition. Section 4B(1) required "[A] description of the unit appropriate or claimed to be appropriate for purposes of exclusive representation by the petitioner". What this section requires is a description of the unit which the petitioner seeks to represent. The Court may infer that petitioner believes the proposed unit to be an appropriate one. When the appropriateness of a unit is in issue, the Court determines the matter before an election is ordered. There appears to be no necessity for requiring the petitioner to include the term "appropriate" in its pleading. For these reasons the Court should determine that the Representation Petition filed January 27, 1976, does state facts sufficient to constitute a cause of action in a representation proceeding.

Regarding the Correctional Officer VI classification, which is commonly referred to as lieutenant, the law on supervisory status is well established in this jurisdictin. [1] In CITY OF GRAND ISLAND v. AFSCME , 186 Neb. 711 (1971), the Supreme Court determined that supervisory status under Nebraska law is determined by the definition of Supervisor in the National Labor Relations Act. [2]

That decision held that individual's having the authority to responsibly direct other employees should be classified as supervisors and excluded from bargaining units of non-supervisory personnel. From the stipulations of the parties filed August 6, 1976, it is apparent that in addition to responsibly directing the work of other correctional officers, the lieutenants effectively recommend disciplinary action, merit pay and promotions. The Court should find, therefore, that they are supervisory personnel and must be excluded from the bargaining unit in accordance with the CITY OF GRAND ISLAND decision.

It should perhaps be noted that there may be similarities between this unit and a unit of police officers. Section 48-806 R.R.S. 1943 (Reissue 1974), contains an exception to the rule excluding supervisory personnel from non-supervisory bargaining units, but that provision is expressly limited to firemen and policemen employed by municipalities. As the facts of this case do not fall within this statutory provision, the unit must conform to the Supreme Court holdings in the CITY OF GRAND ISLAND Case.

In determining whether the correctional officers stationed at the post-care units [3] should be included with the appropriate bargaining unit consideration is given to mutuality of interest in wages, hours, and working conditions, duties and skills of employees, extent of union organization, and desires of the employees. CITY OF GRAND ISLAND v. AFSCME , 186 Neb. 711 (1971); AFSCME v. DEPT. OF ROADS , 3 CIR 128/138-1 (1971); IBEW, LOCAL NO. 1221 v. NEB. EDUC. TELEVISION COMM. AND BOARD OF REGENTS , 3 CIR 133/134-1 (1975).

Applying these criteria to the facts of this case there is a community of interest among all non-supervisory correctional officers of the Nebraska Penal and Correctional Complex including individuals stationed at the post-care units.

The officers at the five post-care units receive the same training as those stationed at the maximum and medium security units. They have the same job responsibilities of security, custody and control of legal offenders. Each of the above three units of the Nebraska Penal and Correctional complex is operated 24 hours a day, seven days a week, with eight hour shifts. The correctional officers at all three units work 40 hour weeks, receive the same fringe benefits and are under the same State Personnel job classification/pay grade system.

There are some differences in the working conditions at the post-care units but these are not considered to be determinative. The officers are referred to as "supervisors" at the post-care units rather than guards. The post-care units are staffed with Correctional Officers I and II. Their superiors are Development and Placement Counselors and Vocational and Rehabilitation Counselors, rather than higher ranked Correctional Officers. While the qualifications and function of the counselors apparently differ considerably from those of Correctional Officers III, IV, V, and VI stationed at the maximum and medium security units, there was no showing that this affects the duties of the correctional officers under their supervision. The chain of command goes to the Director of Development and Placement, rather than to the Captain of the Guard, although all officers are responsible to the Warden and Deputy Warden.

In I.B.E.W. LOCAL NO. 1221 v. NEB. TELEVISION COMM. AND BOARD OF REGENT , 3 CIR 133/134-1 (1975), the Court concluded that fragmented bargaining units interfere with the continuous operational efficiency of governmental services and should be avoided to the extent possible that is consistent with the preservation of the rights of public sector employees to engage in collective bargaining. The inclusion of post-care unit employees within the appropriate units is consistent with the public policy considerations discussed in the opinion by Kratz, J.

One of the post-care units in Omaha differs from the other post-care facilities, in that its employees are women who "supervise" prisoners from the Nebraska Center for Women in York. While the women's reformatory is part of the Department of Correctional Services, it is not part of the Nebraska Penal and Correctional Complex. However, the evidence demonstrated that each officer's administrative ties were with the Nebraska Penal and Correction Complex. The evidence also indicated that none of the women officers at the Omaha post-care unit had been transferred from the York facility.

The Court should find that although these officers supervise inmates from another division of the department of Correctional Services, they have a community of interest concerning employment matters with the other officers of the Nebraska Penal and Correctional Services, and should be included within the appropriate bargaining unit described below.

The Court should determine that the following unit is appropriate for the purpose of collective bargaining.

All duly employed correctional officers of the Nebraska Penal and Correctional complex, reformatory, penitentiary and post-care units, except those of a rank of lieutenant (Correction Officer VI) and higher.

IT IS, THEREFORE, RECOMMENDED that a secret ballot election be ordered within the unit described above.

Entered October 1, 1976.

[1] City of Grand Island v. AFSCME , 1 CIR 24-1 (1970) modified 186 Neb. 711 (1971); Int'l Assoc. of Firefighters v. City of Fremont , 1 CIR 25-1 (1970); In Re City of Omaha , et al., 1 CIR 32-1 (1971); Mid-Plains Assoc. v. Mid-Plains Voc-Tech College ,1 CIR 33-1 (1972); Fremont Police Union v. City of Fremont , 2 CIR 52-1 (1971); CWA v. City of Hastings , 2 CIR 99-1 (1975); Metro Tech. Educ. Assoc. v. Metro Tech Community College , 3 CIR 176-1 (1976); Metro Tech Educ. Assoc. v. Metro Tech Community College , 3 CIR 167-1 (1976).

[2]"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 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." City of Grand Island , 186 Neb. 711, 715 (1971).

[3]There are five post-care units; three in Omaha, one in Lincoln, and one in Norfolk.