4 CIR 98 (1979)


a Local of the International Brotherhood |
of Police Officers, |
Petitioner, |
Municipal Corporation, |
Respondent. |


For the Petitioner: J. Murry Shaeffer

For the Respondent: William A. Harding

Before: Gradwohl, P.J.; Kratz and Wall, JJ.:


This matter brings before us the questions of tailoring the proper unit for the Sidney Police Department and the possible illegal effect of the signature of command officers, known to be ineligible to belong to the unit, on the petition for an election. We have jurisdiction of the parties and of the subject matter. The clerk has determined that a sufficient number of employees have signed the authorization petition, and that determination has become final.

Section 48-816, R. R. S. 1943 provides in the third paragraph thereof that in police and fire organizations, all employees subordinate "to the chief of the department and his immediate assistant or assistants holding authority subordinate only to the chief" may be included in the bargaining unit. The parties concede that this provision excludes the chief and the two captains (shift commanders) who report directly to the chief. A question arises as to the lieutenant who is a shift commander part of the week, reporting directly to the chief, and who is just another lieutenant, reporting to a captain, for the rest of the week. The language of the statute "subordinate only to the chief" clearly disposes of this problem. The lieutenant reports not only to the chief, but also to the chief's assistants and, therefore, may be a member of the bargaining unit. A second question arises as to the detective lieutenant, who is virtually autonomous, who takes charge at major crime scenes, but who testified that he would defer to a captain if the captain wanted to take over at the scene of the crime. Again, the statutory language is controlling, and the lieutenant, since he on occasion gives up his autonomous role and reports to a captain, may belong to the unit. A third question arises as to the day shift dispatcher/secretary. Respondent presented two objections: first, that she was subordinate directly to the chief and, second, that she was a confidential employee. The testimony is uncontradicted that his employee does typing and works for everyone on the day shift, including ordinary patrol officers. The testimony of the chief is also uncontradicted that she has access "to everything in my office except the payroll and confidential matters," which are separately locked up, or at City Hall. Clearly, she may belong to the unit.

Finally, we come to the question of influence by command officers in securing signatures to the petition. The testimony is uncontradicted that a meeting was held June 19, 1979, to discuss the formation of a local union and affiliation with a national union, and that the chief attended. It is also uncontradicted that the chief felt no one was paying any special attention to him or felt inhibited by his presence. No one has come forth to complain that the chief's presence intimidated them or inhibited the exercise of any of their rights. (Compare Vathauer v. HEAN , 3 CIR 289, 1977). The chief further testified that he had a purely personal, as opposed to a managerial, interest in the union - the then city manager had told the chief that if he, the city manager, "was going," he was going to take some others with him, the "others" apparently including the chief.[1]

There is no showing of any effect on anyone by participation of the other command officers.

Ten of the eighteen signatures on the authorization petition were obtained at the meeting of June 19, 1979. The chief did not sign until June 20, 1979. Under all of the facts and circumstances herein, we find no illegal or improper managerial influence. See NLRB v. Alvin J. Bart & Co., Inc. , 598 F. 2d 1267, 1272 (CA2, 1979).

We conclude that the appropriate unit is all full-time and permanent part-time employees of the Police Department of the City of Sidney, excluding the Chief and the two Captains.

ORDERED, that a secret ballot election be conducted within a reasonable time from the date of this Opinion within the unit above described.

IT IS FURTHER ORDERED that the Commission's representative in the conduct of such election shall be Judge Benjamin M. Wall and that the election shall be held under the immediate supervision of the Executive Director/Clerk of the Commission, Janet Stewart Amold.

IT IS FURTHER ORDERED that Janet Stewart Arnold is appointed hearing examiner to determine initially all questions arising during the election process.

IT IS FURTHER ORDERED that counsel for the parties shall meet with the Executive Director/Clerk of the Commission on November 21, 1979, at 10:00 o'clock A.M. in the office of the Commission at Lincoln, Nebraska, to agree upon or have determined all matters not covered by Rule 9.

Filed November 8, 1979.

[1]At the time of trial, the old city manager was gone, and the chief was still on the job, so that the threat did not come to fruition.