| NEBRASKA CORRECTIONAL OFFICERS UNION, | | | CASE NO. 311 |
| LOCAL 9, INTERNATIONAL BROTHERHOOD OF | | | |
| CORRECTIONAL OFFICERS, | | | |
| | | ||
| Petitioner, | | | |
| | | ||
| vs. | | | OPINION AND ORDER |
| | | ||
| NEBRASKA DEPARTMENT OF CORRECTION | | | |
| SERVICES, A DEPARTMENT OF THE STATE | | | |
| OF NEBRASKA, | | | |
| | | ||
| Respondent. | | |
Appearances:
J. Murry Shaeffer, For the Petitioner
Lynne R. Fritz, Assistant Attorney General, For the Respondent
Before: Judges Wall, McGinley and Gradwohl
GRADWOHL, P.J.:
A trial was held on September 25, 1979, on the question whether or not Correctional Officer VI (Lieutenant) should be included within the Correctional Officers' bargaining unit. The parties agreed that Correctional Officers I through V should be in the bargaining unit and that Correctional Officer VII (Captain) and higher ranking officers should not be included within the unit.
The controlling principles were first stated by the Supreme Court in City of Grand Island v. American Federation of S.C. & M. 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 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. 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 '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.
"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 question of whether or not Correctional Officer VI should be included within the bargaining unit has been previously determined by this tribunal. See Nebraska Local of the International Brotherhood of Correctional Officers v. State of Nebraska Depa*rtment of Correctional Services , 3 CIR 181, 182-83 (1976). The Hearing Examiner's Report, which was subsequently adopted by Order of the Court (see 3 CIR at 185-86) and in the Certification Order following the employees' secret ballot election, stated:
"Regarding the Correction Officer VI classification, which is commonly referred to as lieutenant, the law on supervisory status is well established in this jurisdiction.[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 48-816 R.R.S. 1943 (Reissue 1974), contains an exception to the rule excluding supervisory personnel from non-supervisory bargaining unit, 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."
While there have been some changes in management and personnel functions since the 1976 determination, the essential supervisory duties of Correctional Officer VI have not changed. 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".
IT IS, THEREFORE, DETERMINED AND ORDERED that employees with a rank of Correctional Officer VI (Lieutenant) are supervisors and cannot be included within the correctional officers' bargaining unit.
Pursuant to Paragraph 4 of the Report of Pretrial Conference filed August 30, 1979, Petitioner is allowed until November 9, 1979, to file a showing of interest of York employees as a part of this proceeding.
All Judges assigned to the panel in this case join in this Opinion and Order.
Filed October 16, 1979.
[1] City of Grand Island v. AFSCME , 1 CIR 24-1(1970) modified 186 Neb. 711 (1971); International 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
"[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). "
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