5 CIR 74 (1980)


Petitioner, |
Respondent. |


For Petitioner: David J. Cullan.

For Respondent: Steven P. Denton.

Before: Judges Berkheimer, Kratz, Wall.


This matter came on for trial on Petitioner's Amended Petition praying for a determination of an appropriate unit for bargaining and voting in a certification election, the holding of a certification election, and certification of Petitioner as collective bargaining agent for such unit if a majority of unit employees vote in favor of Petitioner as collective bargaining agent; and upon Respondent's Amended Answer placing in issue the appropriateness of the unit asserted by Petitioner, specifically alleging that foremen and field engineers described in the Petition should be excluded from the unit and also alleging that the Petitioner's Petition is supported by less than 30 percent of employees in the bargaining unit in that signatures submitted by Petitioner in support of its Petition are improper in that signatures were obtained through assistance, cooperation, and coercion by supervisors.

The bargaining unit asserted as appropriate in Petitioner's original Petition was as follows:

All full-time and regular part-time maintenance, distribution and office clerical employees, including foremen, sub-foremen, linemen, field engineers, electrical advisors, warehousemen, and materialmen; but excluding confidential employees, guards and supervisors as defined by the Commission.

In the course of the hearing the Petitioner was permitted to amend and did amend its Petition to describe the following bargaining unit:

All full-time and regular part-time maintenance, distribution and office clerical employees, including foremen, sub-foremen, linemen, electrical advisors, warehousemen, and materialmen; but excluding confidential employees, guards, the Office Manager, Engineering and Planning Manager and Line Superintendent.

The parties stipulated that two janitors are regular part-time employees includable in the unit and that one part-time office helper is not a regular employee and therefore should be excluded.


The bargaining unit issue as now presented is limited to whether or not service crew foreman, Wendell Hunter, line crew foreman, Ron Housh, and substation foreman, James Luverne Hankins should be excluded from the bargaining unit as supervisors.

The applicable rules for determining who is a supervisor have been set forth in Nebraska Correctional Officers Union v. Nebraska Department of Correctional Officers , 4 CIR 70, 71-72 (1979) and again in Omaha-Douglas County Health Department Employees Association v. Omaha-Douglas County Health Department , et al ., 4 CIR 217, 219-220 (1980) 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 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 laws 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 responsibility 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.

In the Grand Island decision the Supreme Court also said:

In reaching its decision the Court of Industrial Relations found that decisions under the National Labor Relations Act were helpful but not controlling upon the Court. We think that this is a correct statement as to the consideration to be given to the decisions under the federal law.

We have given such consideration to NLRB decisions in this case.

1. Line Crew Foremen and Service Crew Foremen.

Petitioner's organizational chart (Exhibit 2) shows three individuals in the service crew including its foreman and four individuals including its foreman in the line crew. The crew foremen receive work assignments and descriptions of work to be performed. The foremen are responsible to management for proper performance of the work assigned; however, in actual performance of the work the foremen's duties differ little from those of the other crew members. Ordinarily all the crew members confer regarding how the assigned job is to be carried out and at least those who have achieved rank of journeyman make suggestions and participate in such decisions. The foremen's supervisory activities in carrying out the work are essentially routine and ministerial such as determining which poles will be climbed by him and which by others with similar allocations of other tasks between himself and others. Petitioner's manager testified that the crew foremen had authority independently to impose disciplinary sanctions such as sending an employee off the job and in effect suspending him for the remainder of a day, but the crew foremen testified that they were not aware of such authority and never exercised it. On one occasion a foreman did recommend discharge of an employee, but the recommendation was not followed. Respondent's acting manager testified that he would rely heavily on a crew foreman's recommendation for promotion. However, about the only type of promotion available within a crew appears to be promotion from apprentice to journeyman and the achievement of forward steps in the apprentice program leading to journeyman status. The apprentice program is supervised and administered on a statewide basis and not by or through the employer. Advances in the apprenticeship program require on-the-job evaluation but authority to evaluate under the statewide program appears to stem from journeyman status rather than from supervisory status.

In Monongahela Power Company , 176 NLRB, No. 123, "Lead Linemen" in charge of crews of two or three employees were found not to be supervisors. The duties of the lead linemen in that case do not differ materially from those of the crew foremen here. While the line and service crew foremen here have some limited supervisory authority we do not find that such authority is more than routine or is such as to render them supervisors under the tests applied by our decisions and those of the Nebraska Supreme Court. Nor are their interests so conflicting with those of other employees as to warrant their exclusion from the bargaining unit.

2. Substation Foremen.

The substation foreman performs several functions. The organizational chart (Exhibit 2) does not indicate any supervisory status for the substation foreman. His oversight of substations and his duty with respect to "load control" on a day-today basis are performed by him alone. From time to time, however, men from crews are temporarily assigned to substation work. It is not clear whether or not the assignments at times include one of the other foremen. These assignments are made by management and inferentially are based on management's determination of work to be done through consultations with the substation foreman. The substation foreman no doubt transmits management's assignments, and on these occasions the substation foreman exercises supervisory functions similar to those exercised by the other foremen. The individual who presently holds the substation foreman position also rotates on an approximately tri-weekly basis with the acting manager of the Respondent and another admittedly supervisory employee in taking calls after business hours. In exercising this function he deals with customers, evaluates their problems as to whether sending employees of Respondent to remedy the situation is appropriate or necessary and if so does call out employees. The function is essentially that of a dispatcher. While the other individuals performing this duty are supervisors, the evidence is to the effect that the reasons for the substation foreman being included in this duty roster are his long service for the district during which he performed a wide variety of jobs together with his acquaintance with a large number of district customers which prompts customers to call him rather than persons with lesser service. Respondent points out that the substation foreman is compensated by a salary while other members of the unit are hourly wage earners. While the issue of salary may be a factor in determining community and conflict of interest or supervisory status, considering all the factors before us and the principles discussed above, it is our conclusion that the substation foreman's limited supervisory responsibility and his essentially administrative duties do not under the tests we have applied and the tests set forth by the Supreme Court render him a supervisor or create a conflict of interest sufficient to exclude him from the unit.

3. Make-up of the Work Force.

Another factor to which we have given some weight in reaching this decision as to the service and line crew foremen as well as with respect to the substation foremen, is Respondent's undisputed supervisory structure compared with the number of employees in the work force. Respondent's organizational chart shows a total of 20 persons including two part-time janitors. That four members of this work force are supervisors is not disputed. If we were to add the 3 foremen as supervisors there would be a ratio of 7 supervisors to 13 non-supervisors in the entire work force. Of the three second level supervisors reporting to the acting manager the line of authority through one, the office manager, is not in issue. If we were to add 3 additional supervisors to the lines of authority in issue the ratio would be 6 supervisors to 9 non-supervisors. The NLRB has on occasion given weight to such ratios in finding employees not to be supervisors, e.g. U.S. Gympsum Co ., 121 NLRB 370 (5 supervisors for 6 employees); RUB-R Engraving Co. , 89 NLRB 475 (5 supervisors for 13 employees); Ironside Co. , 87 NLRB 1564 (1 supervisor for 2 employees). While not at all conclusive, we believe that ratios are entitled to some weight in this case in determining the degree of supervisory authority required at the foreman level.

Our conclusion is that Messrs. Hunter, Housh and Hankins should be included in the bargaining unit.



Respondent's evidence on supervisor participation in obtaining a showing of interest to support the Petition was limited to the activities of the line crew foreman and the service crew foreman. Since we find that both of these individuals should be included in the bargaining unit, we need not reach the effect of their participation in obtaining a showing of interest.


1. That the bargaining unit for which an election

shall be held herein is defined as:

All full-time and regular part-time maintenance, distribution and office clerical employees, including line crew foremen, service crew foremen, substation foremen, subforemen, linemen, electrical advisors, warehousemen, and materialmen; but excluding confidential employees, guards, Office Manager, Engineering and Planning Manager, Line Superintendent and other supervisors as defined by the Commission.

2. That an election be held in accordance with the rules of the Commission and that the Clerk of the Commission is appointed to act in accordance with Rule 9B.

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

Entered October 30, 1980