3 CIR 4 (1975)


Petitioner, |
Defendant. |


Appearances: For Petitioner, John P. Fahey

For Defendant, William A. Harding


This case commenced on September 10, 1973, when the Petitioner filed with this court a request for an election in a designated unit of employees of the city of Hastings, Nebraska (Defendant). After a hearing, this court ordered an election. A majority of the employees in the unit voted in favor of the Petitioner and on August 19, 1974, we certified the Petitioner as the bargaining agent for employees in the streets and alleys, parks and forestry, health and engineering departments of the city of Hastings.

On November 26, 1974, Petitioner filed a motion asking this court to (1) amend the certification to include the auditorium department, and (2) determine whether four employees (Ihm, Baker, Trupp, and Walsh) should or should not be included in the bargaining unit. The hearing on this motion was held on February 17, 1975. Evidence was adduced and briefs were submitted.

The Petitioner has advised the court that it will not submit argument on the issue of broadening the bargaining unit to include the auditorium department, and the court holds that by waiting until after the election to raise this issue, the Petitioner has waived its right to include the auditorium department within the bargaining unit. To hold otherwise might cause election proceedings before this court to become interminable.

The remaining issue involves the employment status of the four employees. Defendant claims they are supervisors and should, therefore, be excluded from the unit. Conceding that if they are supervisors, they cannot be included, Petitioner argues that they are not supervisors under the definitions prescribed by the National Labor Relations Act and apparently adopted by the Nebraska Supreme Court in City of Grand Island v. AFSCME , 186Neb. 711, 185 N.W. 2nd 860 (1971).

In the City of Grand Island case, the Nebraska Supreme Court said as follows:

"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. 2nd, Labor and Labor Relations, Section 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 responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing 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., Section 152 (11), P. 233; 48 Am. Jur. 2nd, Labor and Labor Relations, Section 422, P. 306.

In holding that fire captains and lieutenants were supervisors and thus excluded from the bargaining unit, the Supreme Court applied the federal law definition, as follows:

"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."

It appears clear, therefore, that the Nebraska Supreme Court has concluded that supervisors should not be included in a collective bargaining unit with non-supervisors and they have used the definition from the National Labor Relations Act to determine supervisory status. This court has interpreted the Supreme Court decision as follows:

"The determination of employee supervisory status under the Nebraska Industrial Relations Act is dependent on the National Labor Relations Act definition of 'supervisor'." Mid Plains Education Association v. Mid-Plains Nebraska Technical College , Case No. 33.

The federal law definition is applicable in the disjunctive and therefore to be classed as a supervisor the employee need have only one or more of the types of authority specified in the definition. The Nebraska Supreme Court's application of the supervisor definition to the captains and lieutenants in the Grand Island case indicates that they intend to apply the definition in the same manner to the Nebraska law.

Analyzing the evidence regarding the four employees, it appears that employee Ihm has more authority than the others. Significant in this regard is the fact that Ihm is second in command to city engineer Hunt and undertakes Hunt's duties and responsibilities when Hunt is absent. Ihm furthermore regularly supervises several people, makes recommendations on pay increases and discipline, and is paid a monthly salary rather than an hourly wage. He has the position of Foreman II, while the other three are rated Foreman I.

Clearly Ihm is a supervisor and we so hold.

Because of the retirement of an employee named Wagner, and the apparent permanent illness of an employee named Lueders, both of whom had, or have, the rating of Foreman II, Baker, Walsh, and Trupp actually perform the duties of Foreman II, though they are only listed as Foreman I. If Wagner and Lueders are replaced, the duties and responsibilities of these three employees will likely diminish. There is no evidence, however, that gives any indication as to what will happen in the future in this regard and we cannot base our decision on what might happen. The National Labor Relations Board and the Courts have held that an employee's supervisory status is determined by his duties and not by his job title. NLRB v. Cooke & Jones, Inc., 339 F. 2d 580.

We are constrained to conclude that the present duties and responsibilities of employees Baker, Walsh, and Trupp qualify them as supervisors under the Federal definition. They recommend reprimands, disciplinary action, pay increases, and dismissal. They appear to responsibly direct several people;[1] they have authority to grant leave time and overtime; and they adjust employee grievances.

The extent to which they perform these duties would appear, from this record, to be more than "of a merely routine or clerical nature," and we would conclude, also that they do use some independent judgment in the exercise of these defined supervisory responsibilities. They appear to exercise more supervisory authority than the captains and lieutenants of the fire department who were determined to be supervisors in City of Grand Island v. AFSCME , supra.

Thus, Petitioner's motion is hereby denied and the court orders that the existing bargaining unit herein shall not include employees Ihm, Baker, Walsh, and Trupp, nor shall it include the employees of the auditorium department.

Entered April 28, 1975.

[1] The evidence shows that Walsh and Trupp regularly direct 5 to 10 employees, depending on the season, and that Baker will direct as many as 20 employees in the summer.