| NEBRASKA ASSOCIATION OF | | | CASE NO. 137 |
| PUBLIC EMPLOYEES, A Corporation | | | REP. DOC. NO. 35 |
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| Plaintiff, | | | |
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| v. | | | OPINION |
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| NEBRASKA GAME AND PARKS | | | |
| COMMISSION, | | | |
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| Defendant. | | |
Appearances: For Plaintiff, Douglas Marti
For Defendant, Gary B. Schneider
Before: Kratz, Rudolph, and Green, J.J. Kratz concurring in result only.
RUDOLPH, J.:
This case is presented on essentially agreed upon facts. The Nebraska Association of Public Employees (NAPE) has petitioned this Court to be certified as the exclusive bargaining agent for the supervisory employees of The Nebraska Game and Parks Commission. There is no dispute that the employees to be represented are supervisory personnel. The employees that Plaintiff is representing in this case were excluded from the bargaining unit in NAPE v. Nebraska Game & Parks Commission Case No. 106 as supervisory personnel. There is no substantial dispute that the supervisory personnel are not management. None of the personnel asking to be represented are officers of the state or have these duties defined by statute. There is also no question that the persons asking to be represented are employees and are not management as the term is used in labor relations. The unit does not include the director, the assistant for line, staff or parks and does not include any of the chiefs of any of the divisions. The bargaining unit does include technical personnel such as accountants, architects, property agents, and planners as well as park superintendents.
The basis for this Court's decision must be the Court of Industrial Relations act of the State of Nebraska. The Legislature did not specifically exclude supervisors as did Congress in the Nebraska Act which defines employer and employed as follows in 48-801 (4) and (5):
"(4) Employer shall mean the State of Nebraska or any political or governmental subdivision of the State of Nebraska, except the Nebraska National Guard or state militia,any municipal corporation, or any public power district or public power and irrigation district. It shall also include any public utility as defined in sections 48-801 to 48-823:
(5) Employee shall include any person employed by any employer as defined in sections 48-801 to 48-823;"
It is clear from this definition that there is no specific limitation on supervisory personnel. The peculiar problem of supervisory personnel in state public employment has been dealt with specifically in several states. For example, Minnesota has specifically provided that supervisors may not be in the same unit with rank and file employees. L. 1973, c. 635, § 13, amended Minn. St. 1971, § 179.65 removed this exclusion as follows:
"Supervisory and confidential employees, principals, and assistant principals may form their own organizations. An employer shall extend exclusive recognition to a representative of or an organization of supervisory or confidential employees, or principals and assistant principals, for the purpose of negotiating terms or conditions of employment, in accordance with all other provisions of Laws 1973, Chapter 635, as though they were essential employees."
Essential employees were required to have separate units. Other states such as Connecticut, District of Columbia, Illinois, Iowa, Kansas, Florida, Maine, Massachusetts, Michigan, New York, New Mexico, Oregon and Washington specifically exclude supervisors from rank and file units by statute. However, Michigan has held that such supervisors may have separate units. (School District of Dearborn v. Labor Mediation Board , 177 N.W. 2d 196; Hillsdale Community School v. Michigan Labor Mediation Board , 179 N.W. 2d 661.)
On the other side, New York has construed its act to prohibit any supervisory unions. The Court of Appeals of New York specifically said in Shelofsky v. Helsby , 295 N.E. 2d 774 (1973):
"In sum, there has been no showing that exclusion of management personnel from association membership is an unreasonable limitation on State employees. Withholding the benefits of collective bargaining from management personnel has long been approved in private employment. Its carry-over into public employment is a reasonable means of promoting harmonious labor relations."
The Federal District Court for the Northern District of Illinois also has held that the exclusion of supervisors from rank and file bargaining units is not a violation of the employees' First Amendment Right of Freedom of Association. Firefighters, Local 2340 v. Willis , 90 LRRM 2447 (1975) (D.C. Ill).
In Nebraska, our Supreme Court, relying on the National Labor Relations Act of 1947, has held that the exclusion of supervisors from rank and file units was necessary in order to prevent a conflict of interest on the part of supervisory employees. The Court in City of Grand Island v. American Federation of State, County and Municipal Employees , 186 Neb. 711 (1971) said in Paragraph 4 of the Syllabus:
"Individuals who are authorized to responsibly direct other employees are supervisory employees and should be excluded from the employee bargaining unit."
In summary, then, among both courts and legislatures that have considered the matter, there seems some degree of unanimity that supervisors should not be in the same bargaining unit with rank and file employees essentially because such joint membership might cause a conflict between the supervisor's duty of loyalty to his employer and his duty of mutual aid with his fellow union members in the bargaining unit.
The issue before this Court, however, goes beyond the question of whether or not supervisors may be in the same unit with rank and file employees. We must decide whether the logic of the position that requires exclusion of supervisory personnel permits the supervisors to have separate units and whether such separate units may affiliate in any manner with rank and file units.
It is clear that legislatures could properly and constitutionally either provide for separate supervisory bargaining units as it did in Minnesota or prohibit such units as was done in New York. The Nebraska Legislature has done neither; it has simply provided that all employees should be able to belong to labor organizations.
The purpose behind the prohibition of supervisory units was clearly stated in the legislative history of the Taft-Hartley Act. This legislative history indicated that the Committee believed that no supervisory union would be able to succeed in a strike if the rank and file did not support such a union. Therefore, a union of supervisors could not be truly independent of the employees' union in a strike situation, because the supervisory union would be dependent on the rank and file union for sympathetic strike action if it were to succeed in a strike. It was believed that this needed support by the rank and file union would only be forthcoming at a price. This price would be the subordination of the supervisors' union to that of the more powerful rank and file union. In such case, the supervisors would not be able to properly discipline workers and otherwise fulfill their management functions.
The analogy to the private sector was also used by J. Breitel in Shelofsky, supra where he said:
"The exclusion of supervisory personnel from collective bargaining rights enjoyed by employees is not a new concept (see Rains, Collective Bargaining in the Public Sector and the Need for Exclusion of Supervisory Personnel, 23 Lab. L. J. 275). In 1947, the Taft-Hartley Act (Labor Management Relations Act) amended the National Labor Relations Act in part to exclude 'supervisors' from collective bargaining rights enjoyed by private employees generally ( District 2, Mar. Engrs. Beneficial Assn. v. New York Shipping Assn. , 22N.Y. 2d 809, 812 cert. den. 393 U.S. 960; Westinghouse Elec. Corp. v. N.L.R.B., 424 F. 2d 1151, 1158 (7th Cir.), cert, den. 400 U.S. 831; see Warner Co. v. N.L.R.B. , 365 F. 2d 435, 437 (3d Cir.); Ann., Labor Relations Act - Supervisors, 40 ALR. 2d 415). The Taft-Hartley Act was upheld against a constitutional attack almost identical to that urged here in National Labor Relations Bd. v. Edward G. Budd Mfg. Co. (169 F.2d 571, 578 (6th Cir.), cert. den. 335 U.S. 908). In the Budd case, involving private employees, it was held the exclusion of supervisory personnel from collective bargaining rights did not infringe their First Amendment rights of freedom of assembly and was not an arbitrary classification violative of due process. The objective of the Taft-Hartley Act, held permissible in the Budd case, was to assure the employer of a loyal and efficient cadre of supervisors and managers independent from the rank and file ( National Labor Rel. Bd. v. Retail Clerks Inter. Assn., 211 F.2d 759, 763-764 (9th Cir.), cert. den. 348 U.S. 839). That objective is equally applicable to the State, as an employer (see Rains, Collective Bargaining in the Public Sector and the Need for Exclusion of Supervisory Personnel, supra )."
The needs, however, in the Private Sector with its right to strike and use economic power are inappropriate to the Public Sector especially under the Court of Industrial Relations Act. There is little, if any, need for supervisors to look to rank and file unions for economic strength.
Division 1 and Division 2 of the Court of Appeals in Michigan in separate opinions have held that a statute providing the employee may bargain is a determination by the Legislature that supervisors may have separate units of their own choosing and that public employers must bargain with them. Hillsdale Community Schools v. Michigan Labor Mediation Board , 179 N.W.2d 66, 24 Mich. App. 36; School District of the City of Dearborn v. Labor Mediation Board , 177 N.W.2d 196, 22 Mich. App. 222).
This same conclusion was reached by report of Advisory Committee Labor-Management Policies for State and Local Government , Washington, D.C., September 1969. The report said:
"The Commission believes, however, that supervisory and managerial personnel should enjoy certain basic organizational rights. They should be permitted to join and to be represented by an organization that does not include rank-and-file employees on its membership roster. They or their representatives should be authorized to meet on an informal basis with their employer's agent for the purpose of consultation in connection with the terms and conditions of employment or on such other matters as may be determined by the agency head. Yet, regardless of their top or middle echelon status, because they are still members of the management team, supervisors or their representatives should not participate in formal discussions, nor should they be parties to memoranda of understanding with the employer."
This Court is not unmindful of the problems that might arise because of the existence of supervisory unions. On the one hand, there is the clear policy established by statute of allowing employees, including supervisors, to bargain. On the other hand is the need of the state to have supervisors to fully, fairly, and without fear of reprisal carry out state policy. We believe that such interests may be reconciled without endangering either interest. The Court will permit supervisory units if such units are sufficiently separate from the rank and file units of persons who are to be supervised. Presently the Plaintiff in this case is not sufficiently separate.
The Plaintiff, "NAPE", is a somewhat unitary organization. NAPE has a board of directors made up of representatives of all its bargaining units on a proportional representative basis. It has only one full-time director. The Board of Directors sets policy for the local chapters and decides on both bargaining and legislative strategy. Under such circumstances where the need for compromise and accommodations between bargaining units is evident, a conflict of interest could arise within the supervisory units as to whether their interest in common with rank and file units was more important than their duty to management. Under such circumstances, a supervisory unit might not fully do its duty in order to receive general support from the rank and file union, either in bargaining or on legislative proposals.
To avoid any possibility of a conflict of interest in this matter, the Court finds that the Plaintiff in this case may not act as bargaining agent for the supervisory employees as long as the present organization of Plaintiff gives rise to these dangers.
This decision does not prevent the supervisory employees from forming a bargaining unit nor of affiliating with any other labor organization, or for that matter from Plaintiff reorganizing itself in such a fashion as to avoid the dangers set out in this opinion. For this reason, we dismiss Plaintiff's Petition, filed this 5th day of December, 1975.
Kratz, J., concurs in the result only.
Entered December 5, 1975.
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