6 CIR 161 (1982).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

FRATERNAL ORDER | CASE NO. 460
OR POLICE, LODGE | REP. DOC. NO. 156
NO. 16, |
|
Petitioner, |
|
v. | OPINION AND ORDER
|
PLATTE COUNTY, |
|
Respondent. |

Appearances:

For the Petitioner: Dennis M. Connoly

335 Lakin Building

8990 West Dodge Road

Omaha, Nebraska

For the Respondent: William A. Harding

Nelson & Harding

500 The Atrium

1200 N Street

Lincoln, Nebraska

and

Paul M. Schumacher

Platte County Attorney

P.O. Box 122

Columbus, Nebraska

Before: Judges Kratz, Gradwohl, and Davis.

DAVIS, H:

This matter came on for hearing on Petitioner's Amended Petition requesting a representation election pursuant to Section 48-838, and, if successful in such election, certification as exclusive bargaining representative of employees in the bargaining unit found to be appropriate. The unit claimed appropriate by petitioner is "all employees of the Platte County Sheriffs Department who are in a position or classification subordinate to the Platte County Sheriff and the Chief Deputy."

In its Amended Answer to the Amended Petition, the Respondent alleged affirmatively the following nine defenses:

FIRST DEFENSE

The Amended Petition fails to state a claim upon which relief may be granted.

SECOND DEFENSE

The Petitioner has not properly invoked the jurisdiction of the Commission. Section 48-813 of the Nebraska Statutes provides:

Whenever the jurisdiction of the Court of Industrial Relations is invoked, notice of the pendency of the proceedings shall be given in such manner as the court shall provide for serving a copy of the petition and notice of filing upon the adverse party. An employer or labor organization may be served by sending a copy of the Petition filed to institute the proceedings and a notice of filing, which shall show the filing date , by any form of mail requiring a signed receipt, addressed to a principal office or at the usual place of activity of the employer or labor organization. (Emphasis supplied).

Neither the Amended Petition for Representation nor the Notice of Pendency designate the filing date of the Amended Petition herein and service was therefore not completed in accordance with the requirements of §48-813 of the Nebraska Statutes.

THIRD DEFENSE

Rule 4(b) of the Rules of this Commission requires the Amended Petition to contain a description of the unit which is appropriate or claimed to be appropriate, which description shall indicate generally the geographic locations and classification of employees sought to be included and those sought to be excluded. The Amended Petition in the instant case does not contain a clear description of the bargaining unit sought by the Petitioner and contains no list of job classifications sought to be included within said bargaining unit.

FOURTH DEFENSE

The Petitioner is improperly attempting to include supervisory employees within the bargaining unit in the above-captioned case.

FIFTH DEFENSE

The Petitioner is improperly attempting to include confidential employees within the bargaining unit in the above-captioned case.

SIXTH DEFENSE

The Amended Petition for Representation incorrectly identifies the Defendant. Section 23-101 of the Nebraska Statutes states:

Each county, established in this state according to the laws thereof, shall be a body politic and corporate, by the name and style of the county of _______________, and by that name may sue and be sued, plead and shall be impleaded, defend and be defended against, in any court having jurisdiction of the subject matter, either in law or equity, or other place where justice shall be administered.

The Amended Petition for Representation in this case names the Defendant as Platte County instead of designating the Defendant in the manner as set forth in §23-101 of the Nebraska Statutes referred to above.

SEVENTH DEFENSE

The Amended Petition is not supported by an uncoerced 30 percent of the employees in the bargaining unit sought to be represented by the Petitioner, as required by §48-838(3), for the reason that all or a substantial portion of the employee support presented by the Petitioner to this Commission was obtained through the efforts of Sergeant Charles Wangler, a supervisor of the Defendant and former Chief Deputy in the Sheriff's Department.

EIGHTH DEFENSE

The Petitioner is improperly attempting to include both guard and non-guard employees within the bargaining unit.

NINTH DEFENSE

The Petitioner may not represent non-guard employees since it admits guard employees to membership or is affiliated with the state and the national Fraternal Order of Police organization which admits guards to membership. Therefore, the Petitioner must be disqualified in any effort to represent non-guard employees.

The Respondent alleged that the Amended Petition failed to state a claim upon which relief may be granted for the reason that there was no industrial dispute since the Petitioner's request for recognition as the collective bargaining agent for the employees in the bargaining unit had not yet been denied.

Section 48-801(7) defines industrial dispute as the following:

Industrial dispute shall include any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, or refusal to discuss terms or conditions of employment.

The record disclosed that Petitioner had requested recognition from the Respondent and the Respondent has not yet recognized Petitioner as the collective bargaining agent for the employees in the bargaining unit. Therefore, the Commission finds that an industrial dispute does exist between the parties.

Secondly, the Respondent alleged that neither the Amended Petition nor the Notice of Pendency designated the filing date of the Amended Petition and service was not completed in accordance with the requirements of Section 48-813. The Commission addressed this issue earlier upon the Respondent's Motion to Dismiss which was filed on June 1, 1982. In our Order entered July 12, 1982, denying the Respondent's Motion to Dismiss, the Commission found:

1. That the Amended Petition in this matter was filed with the Commission on May 10, 1982. That on May 14, 1982, and on June 1, 1982, the attorney for the Defendant and the Chairman of the Board of County Supervisors of Platte County, respectively, acknowledged receipt of the Amended Petition and Notice of Pendency. That on July 6, 1982, a Proof of Service was filed with the Commission by the Petitioner setting out the above dates.

2. That there has been substantial compliance with Rule 5A of the Rules of the Commission and Section 48-813, R.S. Supp. 1980, and, further, that there has been no showing of prejudice to the Defendant by the service of process by the Petitioner.

Thirdly, the Respondent alleged that the Amended Petition did not contain a clear description of the bargaining unit as required by Rule 4(b) of the CIR Rules. In the Amended Petition, Paragraph 1 describes the bargaining unit as "all the employees who are in a position or classification subordinate to the Platte County Sheriff and the Chief Deputy." Paragraph 5 stated that there are presently 19 employees in the Department of Sheriff of Platte County, Nebraska, subordinate to the Sheriff and Chief Deputy.

Rule 4(B) of the CIR Rules provides in pertinent part:

B. Representation Proceedings. A petition concerning only recognition of a labor organization, request for election, or determination of appropriate unit shall be filed in the Representation Docket and shall contain the following:

1. A description of the unit appropriate or claimed to be appropriate for purposes of exclusive representation by the petitioner. Such description shall indicate generally the geography locations and the classification of employees sought to be included and those sought to be excluded and the approximate number of employees in the unit claimed to be appropriate:

The Commission finds that the Amended Petition complies with the requirements of CIR Rule 4(B) and that the petition did provide a clear description of the bargaining unit claimed to be appropriate.

Fourthly, the Respondent alleged that Petitioner was improperly attempting to include supervisory employees within the bargaining unit. The Respondent submitted that the positions of Sergeant, Investigator, Head Jailor and Corporal are supervisors and should be excluded from the unit.

The controlling principles concerning status as a supervisor were first stated by the Supreme Court of Nebraska in City of Grand Island v. American Federation of State, County, and Municipal employees , 186 Neb. 711, 715-716, 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 , §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 merely routine or clerical nature, but requires the use of independent judgment. Title 29 U.S.C.A., §152(11) p. 233; 48 Am.Jr.2d Labor and Labor Relations , § 422, p. 306.

The record shows that the position of Sergeant does not have the authority to hire, fire, transfer, or suspend any employees. (17:5-9) Nor does he have the authority to recommend termination, suspension, or reprimanding any employee (17:10-16) The Sergeant does schedule the road patrol, but it must be approved by the Sheriff. (15:22-23) The Commission finds that the Sergeant's limited authority to schedule work is more of a routine nature and should not prohibit the Sergeant from being included in the bargaining unit.

The Investigator does not have the authority to recommend hiring, firing, transferring, or disciplining of other employees. (18:2-4) Sergeant Investigator Charles Wanger testified in the following manner (82:2-6):

Q. In performing your duties that you had since August 28th, 1980, when you became investigator, have you had direct command of any deputies since that time?

A. No, I command to no one and answer to the Sheriff. I have nobody under me.

The Commission finds that the position of Investigator should be included within the bargaining unit.

The Head Jailor does not have the authority to transfer, suspend, layoff, recall, promote, discharge, discipline, or handle the grievance of any employee, but does have the power to assign shifts and days off. (19:19-24) The Commission finds the Head Jailor's power to assign shifts and days off is more of a routine nature and should not prohibit the Head Jailor from being included in the bargaining unit.

The Corporal does not have the authority to hire, fire, transfer, or suspend any employees, nor to recommend such action. (25:4-10) The Commission finds that the Corporal should be included in the bargaining unit.

The Respondent's next defense was that the Petitioner was improperly attempting to include confidential employees with the bargaining unit. The Respondent asserted that the secretary is a confidential employee and should be excluded from the bargaining unit.

The guidelines concerning the status as a confidential employee were articulated in Civilian Management, Professional and Technical Employees Council of the City of Omaha, Inc. v. City of Omaha , 6 CIR 460, (August 9, 1982). In this case, the CIR stated that:

It is well settled that National Labor Relations Board decisions and promulgated policies are helpful and may be looked to for guidance but are not controlling in making determinations under the Nebraska Commission of Industrial Relations statutes. See City of Grand Island v. AFSCME , 186 Neb. 711, 185 N.W.2d 860 (1971). The National Labor Relations Board has a practice, recently approved by the United States Supreme court, excluding from bargaining units those "'confidential employees...[']who assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations.'" N.L.R.B. v. Hendricks County Rural Electric Membership Corporation , 102 S. Ct. 216, 220 (1981).

The Sheriff testified in the following manner as to the Secretary's confidential status (21:16-22):

Q. Would you give her any information - would she be involved in any information that should not be disseminated to other employees within your department?

A. There would be times she would be.

Q. And would that be involving labor negotiations or items other than labor negotiations?

A. It would be items other than labor negotiations.

The Commission finds that the Secretary does not assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations and, therefore she is not a confidential employee and should be included within the bargaining unit.

The next defense raised by the Respondent was that the Amended Petition incorrectly identified the Amended Petition incorrectly identified the Respondent as provided by Section 23-101. Section 23-101 of the Nebraska Statutes states:

Each county, established in this state according to the laws thereof, shall be a body politic and corporate, by the name and style of The county of ____________, and by that name may sue and be sued, plead and shall be impleaded, defend and be defended against, in any court having jurisdiction of the subject matter, either in law or equity, or other place where justice shall be administered.

The Amended Petition for Representation in this case names the Respondent as Platte County instead of designating the Respondent in the manner as set forth in §23-101 of the Nebraska Statutes referred to above. The Commission finds that there has been no showing of prejudice to the Respondent by virtue of Petitioner referring to the Respondent as Platte County instead of County of Platte.

The seventh defense raised by the Respondent was that the Petition was not supported by an uncoerced 30% of the employees in the bargaining unit as required by Section 48-838(3), for the reason that all or a substantial portion of the employee support presented by Petitioner was obtained through the efforts of Sergeant Charles Wangler, an alleged supervisor of the Respondent. The Commission finds no merit to this defense since it has already determined that Sergeant Investigator Wangler is not a supervisor.

The Respondent's next defense was that the Petitioner was improperly attempting to include both guard and non-guard employees in the bargaining unit. It is unclear from the record and argument presented by the Respondent who are the non-guard employees referred to in this matter. All of the employees seeking to be represented by the Petitioner are associated with law enforcement. The Secretary even serves as a matron on occasion. (110:11-16) The Commission finds insufficient evidence to make a determination as to whether Petitioner is improperly attempting to include both guard and non-guard employees in the bargaining unit.

The last defense raised by the Respondent is that the Petitioner may not represent non-guard employees since it admits guard employees to membership. The Petitioner's National Constitution and Bylaws has full-time law enforcement officers as those persons eligible for membership. However, a national officer for the Petitioner testified that the local lodges determine just what the scope of law enforcement duties that individual possesses and that same lodge then makes a decision as to whether that person can be a member of that lodge. (110:17-24) The Respondent does not clearly argue that the Secretary is a non-guard employee, however, assuming that to be the fact, the Secretary has been found to be eligible for membership by the members of the local lodge. (111:16-24)

Section 48-838(2) provides the following statutory presumption: "...It shall be presumed in the case of governmental subdivisions such as municipalities, counties, power districts, or utility districts with no previous history of collective bargaining, that units of less than departmental size shall not be appropriate."

In light of this legislative mandate to avoid the undue fragmentation of bargaining units, taken together with the desire of the employees to form one bargaining unit we find that the Secretary should not be excluded from the bargaining unit.

IT IS THEREFORE ORDERED:

1. That the Petitioner has made sufficient showing of interest to entitle it to an election, as stated in the Clerk's Report to the Commission filed April 13, 1982.

2. That the Commission has determined the appropriate bargaining unit to be:

All employees of the Platte County Sheriff's Department excluding the County Sheriff and the Chief Deputy.

3. That an election within the above determined unit shall be held as soon as possible. Judge Harvey D. Davis is appointed as the Commission's Representative for such election. Jerry L. Pigsley is appointed hearing examiner to determine initially all questions arising during the course of the election. The election shall be under the immediate supervision of the Clerk of the Commission. The parties shall confer with the Clerk to agree upon or have determined all questions concerning the election not provided for in Rule 9.

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

Filed September 28, 1982.

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