3 CIR 272 (1976)


Petitioner, |
Respondent. |

December 27, 1976


For Petitioner: Quintin Hughes

For Respondent: Dixon Adams

BEFORE: Kratz, DeBacker, and Green, J.J.


Petitioner, the Non-Certified Employees Association, is a labor organization consisting of employees in the Respondent Bellevue School District. Petitioner requested to represent employees in a specified unit in collective bargaining, and when Respondent refused to recognize said organization, Petitioner filed this suit requesting, inter alia , that the Court conduct a secret ballot election among the employees in the designated unit.

Evidence was elicited at two separate hearings and the ultimate issues are the following:

(1) What is the appropriate unit;

(2) Was Mr. Henry Eby, President of the Petitioner, illegally discharged because of his union activity; and

(3) Does Petitioner have a sufficient showing of interest in the appropriate unit determined by this Court for this Court to order an election.

The question of appropriate unit includes the status of certain employees identified as OSACS (Omaha Suburban Area Council of Schools) employees; the status of school custodians (labeled as "head custodians") as supervisor employees or non-supervisory employees; and the status of employees not receiving fringe benefits as full-time or part-time employees.

Since both parties agree that employees who do not receive fringe benefits are not full-time employees and should be excluded from the unit, we will include in the unit only those employees receiving fringe benefits. In doing so, we do not rule that this is a proper criterion for determining inclusion or exclusion from a collective bargaining unit, but make this determination solely by virtue of the agreement between the parties.

There are three OSACS employees.[1] They are directly supervised by Mr. Mahnke, who is the supervisor of Respondent's District Material Center and the OSACS film library. He is paid exclusively by Respondent. The OSACS organization is a non-profit corporation whose primary purpose is to provide liaison between the seven school districts and the other legislative and educational agencies in the Omaha School District. The three employees are not employed by OSACS, but by the Respondent. Respondent also can hire and fire these employees and the Respondent determines their salaries, which means, of course, that if negotiations are ordered herein, their wages would be a part of that negotiation. OSACS apparently has no control over what is paid to the three employees, but does reimburse the Respondent for their salaries. Under these facts and circumstances, we hold that the three OSACS employees working for Respondent should be included in the collective bargaining unit.

The supervisory issue involves Respondent's custodial employees. There are, of course, many school buildings belonging to the Respondent district and all require custodial attention. It appears that one of the elementary schools is a "one-man school", that is, one custodian,[2] and no other full-time or part-time help. This custodian, though designated as the head custodian of his elementary school, does no hiring or firing, or any recommending of employees, nor does he supervise anyone. He is not, therefore, a supervisor as that term has been defined and applied by the Court of Industrial Relations.

Head custodians at all the other schools apparently have no authority to hire and fire, but can effectively recommend hiring, firing, and transfers. They furthermore supervise custodial employees at these schools, in different numbers, of course, based on the size of the school building. Respondent has one senior high school, two junior high schools, and eleven elementary schools. The senior high school has custodians on a 24-hour basis and lots of them. The head custodian at the two junior high schools direct and supervise eight to ten other custodians. One elementary school, already discussed, has a one-man custodian staff. Two elementary schools have a part-time individual in each building who works less than eight hours and is directed by the head custodian of that school. Two other elementary schools have two part-time employees being directed by the head custodian. The evidence with regard to the other elementary schools is a little confusing, but it seems the remaining elementary schools have at least two or three full-time custodians under the direction of the head custodian, in addition to some part-time employees.

It is clear to us, and we so hold, that the head custodians at the senior high school and junior high schools are supervisors under this Court's interpretations of the Nebraska Court of Industrial Relations act, and should be excluded from the bargaining unit. We also conclude that at those elementary schools where the head custodian supervises other full-time custodial employees, these head custodians are supervisors and should be excluded from the bargaining unit.

On the other hand, we conclude that those custodians without any full-time help, though designated as head custodians, should not be classified as supervisors and should, therefore, be included in the bargaining unit. They are, after all, supervising employees who are not themselves part of the bargaining unit by virtue of agreement between the parties.

The afore-described determinations regarding supervisory employees are based on several cases from this Court and the Nebraska Supreme Court. In particular, we rely on the City of Grand Island v. AFSCME , 1 CIR 24-1 (1970), 186 Neb. 711 (1971), where the Nebraska Supreme Court applied the definition of supervisors established in the National Labor Relations Act (29 USCA 152 (11)), this includes any individual having the 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.

In the case of Mid-Plains Association vs. Mid-Plains Voc-Tech College , 1 CIR 33-1 (1972), this Court relied on the afore-described City of Grand Island case and confirmed that the supervisory status of an employee under the Court of Industrial Relations Act is dependent on the National Labor Relations Act definition of a supervisor and National Labor Relations board decisions interpreting that language. In CWA vs. City of Hastings, 2 CIR 99-1 (1975), this Court again used the federal definition of supervisor and stated, as has the National Labor Relations Board, that the employee need have only one of the types of authority specified in this definition in order to be classified as a supervisor.

Thus, if this Court is applying the federal definition and the Board's interpretation thereof, it can be easily seen that it is not difficult to be classified as a supervisor. Most of the "head custodians" of the Respondent School District certainly possess at least one of the types of authority specified in the definition. While their authority to hire and fire is very limited (the right to fire exists apparently only in an extreme emergency), and many of the other authorities found in the federal definition either do not exist with these "head custodians' or exist in only a very limited form, nevertheless most of these "head custodians" do appear to have authority to "responsibly direct" other employees, and do have authority to recommend with regard to hire, transfer, and suspensions. Since only one type of authority contained in said definition is necessary, most of the "head custodians" are clearly supervisors within the interpretations given by this Court to the Court of Industrial Relations act.

Mr. Staack is not a supervisor for obvious reasons. He has a one-man operation and doesn't direct, hire, fire, recommend, or promote anybody. The determination of whether or not the "head supervisors" at other elementary schools where there are no other full-time employees is more difficult. These schools do have part-time custodial help who doubtless take orders from the "head custodian". Since these people, however, only work in partial shifts, are not a part of the bargaining unit themselves, and are probably as often not present and available as they are present and available, consequently having considerably less direction from the "head custodian" than the full-time employees, we are constrained to consider that these people are not being "responsibly directed" and consequently the head custodian at these schools is not a supervisor. While all of these employees in question have the title of "head custodian", the City of Hastings case, supra, makes clear that the employee's supervisory status is determined by his duties and not by his job title.

The Clerk of the Court, from the above conclusions, can thus determine the names to be included in the appropriate unit, and from the list, along with the showing of interest cards, determine whether the Petitioner has made a sufficient showing of interest under the Court rules to order an election. Said order in this regard will come from the Clerk of the Court.

The matter of the alleged illegal discharge of Mr. Eby is not as easy as our other conclusions. That issue is being studied now but no conclusion has been reached. In order to avoid the delay in the decision on the election, however, we are issuing this opinion pending a determination of the Eby question. If an election is ordered, Mr. Eby should vote, but his ballot should be separated, preserved, and not counted. If that ballot becomes essential to the results of the election, it will then be counted, or not, depending on the results of the pending portion of this case. If his vote will have no effect on the results, it can be destroyed.

NOTE: Footnotes deleted.