4 CIR 217 (1980)


Plaintiff, |
CITY OF OMAHA, a Municipal Corporation, |
COUNTY OF DOUGLAS, a Political Sub- |
division of the State of Nebraska, |
Defendants. |


Thomas J. Young, For the Plaintiff.

Kent N. Whinnery, For the Defendant Omaha-Douglas County Health Department.

Before: Judges Kratz, McGinley and Gradwohl.


A trial was held on April 16, 1980, on the question of whether or not the following individuals should properly be included within the employees' bargaining unit: John Burleigh, Supervisor, Sanitary Engineering Section; Justin Dierks, Supervisor, Food and Drink Section; Wayne Downie, Supervisor, Lead Project; Arnold Fransen, Administrative Assistant; Kenneth Goc, Supervisor, Vital Statistics Section; Joseph Palensky, Supervisor, Sanitation Control Section; Donald Playfoot, Supervisor, Administrative Section; Russell Reinarz, Supervisor, Health Education Section; Elwin Taylor, Supervisor, Rodent Control; and John Weston, Supervisor, Epidemiology.

This is a preliminary proceeding under Section 48-816(1) held in an attempt to reach a speedy resolution of the industrial dispute. Plaintiff's Petition is for a determination of wages and working conditions under Section 48-818. Defendant Department of Health's Answer claims that there has not been bargaining and that if the question of including the supervisors in the employees' bargaining unit can be resolved, the underlying industrial dispute as to wages and working conditions can be eliminated speedily, either by agreement of the parties or by adjudication of the Commission. This preliminary proceeding was set by Order entered March 26, 1980, which also provides that should a trial on the basic dispute as to wages and working conditions be necessary in this matter, a pretrial conference will be held within a few days after May 7th (the date on which all discovery procedures must be completed) and the trial held a few days after the pretrial conference. The Defendants City of Omaha and Douglas County did not appear in these preliminary proceedings.

The collective bargaining agreement for 1979 includes the foregoing supervisors in the employees' unit. Four of the supervisors are members of the Association's collective bargaining team. In 1978, the Board of Health recognized a unit including the employment classifications to which the ten supervisors are assigned, without excepting supervisors either by name or by generic description. That recognition has not been formally rescinded by the Board. There has been no prior bargaining unit determination or certification order by this Commission. The County Health Department is now unwilling to enter into collective bargaining negotiation for 1980 which include the supervisors, on the basis that these supervisors should not properly be included within the employees' unit under Nebraska law.

The applicable rules for determining who is a "supervisor" have recently been set out in Nebraska Correctional Officers Union v. Nebraska Department of Correctional Officers , 4 CIR 70, 71-73, 74-75 (1979) as follows:

"The controlling principles were first stated by the Supreme Court in City of Grand Island v. American Federation of State, County and Municipal Employees , 186 Neb. 711, 715-16, 185 N. W. 2d 860, 863-64 (1971), as follows:

'The Court of Industrial Relations found that the chief and assistant chiefs should be excluded from the fire division unit but that the captains and lieutenants should be included. The city contends that the captains and lieutenants should have been excluded from the bargaining unit.

'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. 2d, Labor and Labor Relations, SS 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 responsibily 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. Title 29 U.S.C.A., SS 152 (11), p. 233; 48 Am. Jur. 2d Labor and Labor Relations, SS 422, p. 306.

'The fire division consists of the chief, 3 assistant chiefs, 6 captains, 3 lieutenants, and 27 unranked personnel classified as firefighters. An assistant chief is in direct control of each shift while it is on duty. There are two fire stations, and a captain is in charge of the station to which he is assigned while he is on duty. The lieutenants are in charge of the ladder company which is based at Station No. 1. The job specifications for the captains and lieutenants appear to be the same although the education and experience requirements are somewhat different.

'The record shows that the captains have general charge of the personnel assigned to their station, and in the event of an alarm are in command until relieved by a superior officer. The lieutenants have similar authority but are not usually in charge of a station. In this respect it may be said that the captains and lieutenants have authority to 'responsibily 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.

'As we view the record the captains and lieutenants should be classified as supervisory personnel and excluded from the employee bargaining unit of the fire division. The order of the Court of Industrial Relations should be modified accordingly.


" 'The Correctional Officer VI is a shift commander of a correctional facility or a portion of a correctional facility. The Correctional Officer VI assigns workers to their posts at the start of the shift; insures that the duties are properly performed; sees that required activities take place; deals with unusual situations which arise during the shift (although a Captain is on call 24 hours per day for major events); maintains the physical security of the institution; and acts in some on the spot discipline matters. These supervisory responsibilities are at least as extensive as those involved in the City of Grand Island decision, above.

'The City of Grand Island decision also establishes that individuals who are authorized to responsibly direct other employees are supervisors under the Nebraska statutes without regard to the other criteria used in defining 'supervisor'. It should be noted, however, that a Correctional Officer VI does have additional supervisory functions (for example, handling the first step of the grievance procedure, recommending and acting with respect to promotions, recommending, discipline, and personnel evaluations, each of which requires an exercise of independent judgment by a Correctional Officer VI) in addition to the element of 'authority to responsibly direct'.' "

The Health Department presently has approximately 88 employees, including the Acting Director. Of these, the six top managerial officials of the Department were not in the employees' bargaining unit as it was constituted in 1978. The ten supervisors involved in the present determination are heads of Sections of the Health Department in charge of administering one of the programs of the Department.

The evidence establishes clearly that the individuals in this matter have authority to responsibly direct other employees, and that they exercise that authority. They make work assignments, schedule the work of the Section, assign employees, and have a responsibility to see that the work is carried out properly, in accordance with the program requirements, and in accordance with federal guidelines for the program. They have substantial freedom in determining how the duties of the Section are carried out. They exercise independent judgment in performing these responsibilities. They receive extra pay under the current contract for the performance of supervisory duties in addition to the pay for their employment classification. They are held out to the public as having supervisory authority. They were designated "supervisors" and performed these duties before collective bargaining was initiated.

As in the Correctional Officers and City of Grand Island decisions, above, individuals who are authorized to responsibly direct other employees are "supervisors" under the Nebraska statutes without regard to the other criteria used in defining "supervisor". Here, too, it should be noted that these employees have additional supervisory functions. They schedule annual leave, initiate the informal evaluation process for promotions, initiate disciplinary action if needed (although it has not been needed recently), and participate significantly in the hiring process by conducting the most comprehensive employment interview and making an important hiring recommendation.

From the evidence, it is determined that the ten individuals are "supervisors" as that term is used in the Nebraska public employment labor law. Accordingly, they are not properly includable within an employees' bargaining unit. This does not adjudicate any rights which may exist by virtue of a contract. See State College Education Association v. Board of Trustees , 205 Neb. 107, 286 N. W. 2d 433 (1979); Transport Workers of America v. Transit Autho*?*ity of the City of Omaha , 205 Neb. 26, 286 N. W. 2d 102 (1979).

IT IS, THEREFORE, DETERMINED AND ORDERED that the ten individuals named above are supervisors and should not be included within the employees' bargaining unit in this matter.

All Judges assigned to the panel in this case join in this Opinion and Order.

Filed April 23, 1980