| CIVILIAN MANAGEMENT, PROFESSIONAL | | | CASE NO. 463 |
| AND TECHNICAL EMPLOYEES COUNCIL | | | REP. DOC. NO. 157 |
| OF THE CITY OF OMAHA, INC., | | | |
| a Nebraska not for profit | | | |
| corporation, | | | |
| | | ||
| Petitioner, | | | |
| | | ||
| v. | | | ORDER DETERMINING |
| | | APPROPRIATE UNIT | |
| THE CITY OF OMAHA, NEBRASKA, | | | |
| a Municipal Corporation, | | | |
| | | ||
| Respondent. | | |
Appearances:
For the Petitioner: Robert V. Dwyer, Jr.
Gregg H. Coffman
Dwyer, O'Leary & Martin, P.C.
810 Woodman Tower
Omaha, Nebraska 68102
For the Respondent: Kent N. Whinnery
Deputy City Attorney
804 Omaha/Douglas Civic Center
Omaha, Nebraska 68183
Before: Judges Berkheimer, Gradwohl, and Kratz
GRADWOHL, J:
The Employees Council seeks to become certified under Section 48-838, R.S. Supp. 1980, as the executive bargaining agent for a unit of middle-level management, technical and professional employees of the City of Omaha. The Employees Council was incorporated in 1979, but the group, itself, has been recognized by the City of Omaha for purposes of conducting negotiations on wages and conditions of employment since its formation in 1975. A separate bargaining agent, Omaha City Employees Local Union No. 251, represents "rank and file" employees of the City of Omaha. See Omaha City Employees Local Union No. 251 v. City of Omaha , 4 C.I.R. 430 (1978).
The unit claimed to be appropriate by the Employees Council consists of:
All regular and full-time employees of the City of Omaha involved in management, technical and professional occupations. The classes of such employees are set forth in document entitled "Classifications Civilian Management". Such classification excludes all appointed and elected officials and seasonal employees.
The specific job classifications comprising the unit claimed by the Employees Council are set out in Ordinance No. 29371 of the City of Omaha, Section 1, Part, A. Classifications Civilian Management.
The City of Omaha objects to the inclusion of certain of the job classifications in the bargaining unit for various reasons:
1. No community of interest;
2. General potential conflict of interest;
3. Potential conflict of interest from participation in labor negotiations;
4. Access to and work with general personnel information;
5. Exercise of supervisory functions;
6. Different training and education requirements; and
7. Substantially different salaries and conditions of employment.
The following table shows the job classifications contained in the "Classifications Civilian Management" portion of Ordinance No. 29371, whether inclusion in the bargaining unit is uncontested or contested by the City of Omaha, and, if contested, the basis upon which the City of Omaha contests inclusion in the bargaining unit. The columns 1 to 7 under "Contested" refer to the grounds listed above upon which the City of Omaha has objected to inclusion of the job classification in the bargaining unit in its pleadings or in its arguments to the Commission.
Contested and
Class Title Uncontested Basis of Contest
1 2 3 4 5 6 7
OFFICE ADMINISTRATION
& MANAGEMENT
Secretary to the City Council X
Assistant to the City Council X X
Executive Secretary X
Deputy City Clerk X X
City Clerk X X
Office Manager X
Word Processing Supervisor X
Public Events Coordinator X
Public Events Manager X
Assistant Civil Defense
Coordinator X X
Civil Defense Coordinator X X
DATA PROCESSING
Fiscal Specialist X
Systems Analyst X
Data Processing Supervisor X X X
FINANCE
Graphics & Printing Foreman X
Chief Cashier X
Buyer X
Purchasing Agent X X X
Payroll Supervisor X X X
Accountant I X X X
Accountant II X X X
Accountant III X X
Accountant IV X X X
City Comptroller X X X
PERSONNEL
Personnel Specialist X X X X X
Personnel Technician I X X X X X
Personnel Technician II X X X X X
Personnel Technician III X X X X X
Contested and
Class Title Uncontested Basis of Contest
1 2 3 4 5 6 7
OFFICE ADMINISTRATION
& MANAGEMENT
Personnel Technician IV X X X X X
Safety Inspector X
HUMAN RELATIONS
Human Relations Specialist X
Human Relations
Representative I X X
Human Relations
Representative II X X
Human Relations
Representative III X X
LIBRARY
Library Specialist X
Librarian I X
Librarian II X
Librarian III X
Assistant Library Director X
LEGAL
Legal Investigator X
Attorney I X X X X X X
Attorney II X X X X X X
Attorney III X X X X X X
Attorney IV X X X X X X
City Attorney X X X X X X X
PLANNING
Planner Specialist X
City Planner I X X
City Planner II X
City Planner III X X X
City Planner IV X X X
Urban Renewal Administrator X
HOUSING AND COMMUNITY DEVELOPMENT
H.C.D. Technician X X
H.C.D. Technician II X X
H.C.D. Technician III X X
H.C.D. Technician IV X X
Special Programs Manager X X
Contested and
Class Title Uncontested Basis of Contest
1 2 3 4 5 6 7
OFFICE ADMINISTRATION
& MANAGEMENT
H.C.D. Specialist X
Community Developer II X
Community Developer Manager X
Economic Development Manager X
COMMUNICATIONS
Senior Communications Operator X
Deputy Chief of Communications X
Chief of Communications X
ENGINEERING
Draftsman III X
Right of Way Agent II X
Engineering Aide III X
Engineering Technician I X
Engineering Technician II X
Engineering Service Manager X
In Service Technician X
Civil Engineer I X X X
Civil Engineer II X X X
Civil Engineer III X X X
Civil Engineer IV X X X
City Engineer X
Traffic Engineer X
Public Works Maintenance
Engineer X
Public Works Inspector II X
SANITATION
Sampling Foreman X
Chemist X
Chief Chemist X
Wastewater Treatment Plant
Foreman I X
Wastewater Treatment Plant
Foreman II X
Wastewater Treatment Plant
Supervisor X
Solid Waste Supervisor X X
Sanitation Engineer X X
Industrial Waste Testing
Manager X
Contested and
Class Title Uncontested Basis of Contest
1 2 3 4 5 6 7
OFFICE ADMINISTRATION
& MANAGEMENT
INSPECTION
Chief Housing Inspector X
Chief Building Inspector X
Chief Electrical Inspector X
Chief Plumbing Inspector X
Chief Mechanical Inspector X
Chief Field Inspector X
Chief Weights & Measures
Inspector X
Chief Air Quality Control
Inspector X
Plans Examiner X
Permits & Inspection
Superintendent X
BUILDING MAINTENANCE
Building & Grounds Manager X X
Property Inventory Specialist X
Property Inventory Supervision X
LABOR SUPERVISION
City Maintenance Foreman I X
City Maintenance Foreman II X
City Maintenance Foreman III X
City Maintenance Supervisor X
City Maintenance Superintendent X
Fire Equipment Foreman X
Asphalt Plant Operator II X
Stationary Engineer II X
Automotive Repair Foreman X
Security Coordinator X
Criminalist X
Crime Analyst X
FORESTRY
Assistant Forester X
Forester X X
PARKS & RECREATION
Greenskeeper X
Parks & Recreation Planner I X
Classifications-Civilian Management
Contested and
Class Title Uncontested Basis of Contest
1 2 3 4 5 6 7
OFFICE ADMINISTRATION
& MANAGEMENT
Parks & Recreation Planner II X X
Parks Manager X X
Recreation Supervisor X X
Recreation Coordinator X X
Recreation Manager X X
Park & Recreation Superintendent X X
1) No community of interest
2) General potential conflict of interest
3) Potential conflict of interest from participation in labor
negotiations
4) Access to and work with personnel information
5) Exercise of supervisory functions
6) Different training and education requirements
7) Substantially different salaries and conditions of employment
Section 48-838 sets out provisions for determining questions of representation and certification of an exclusive bargaining representative through a secret ballot election procedure. Section 48-838(2) contains the following language pertaining to the determination of the appropriate bargaining unit:
The commission shall also determine the appropriate unit for bargaining and for voting in the election, and in making such determination the commission shall consider established bargaining units and established policies of the employer. 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 employees of less than departmental size shall not be appropriate.
In explaining the meaning and effect of Section 48-838(2), the Supreme Court stated in State Colleges Education Association v. Board of Trustees , 205 Neb. 107, 111-114, 286 N.W.2d 433, 436-437 (1979):
Section 48-838(2), R.R.S. 1943, provides in part: "The court shall also determine the appropriate unit for bargaining and for voting in the election, and in making such determination the court shall consider established bargaining units and established policies of the employer." (Emphasis supplied.) Although this is the only specific consideration mentioned in the statute, it is evident the Legislature did not intend that it be the sole consideration, for if it were there would be nothing for the commission to determine in cases where there existed no prior bargaining history.
In American Assn. of University Professors v. Board of Regents, supra , we said: "The considerations set forth in section 48-838 (2), R.S. Supp., 1974, in regard to collective bargaining units of employees, are not exclusive; and the Court of Industrial Relations may consider additional relevant factors in determining what bargaining unit of employees is appropriate.... A basic inquiry in bargaining unit determination is whether a community of interest exists among the employees which is sufficiently strong to warrant their inclusion in a single unit.... In determining whether a particular group of employees constitutes an appropriate bargaining unit where an employer operates a number of facilities, relevant factors include prior bargaining history; centralization of management, particularly, in regard to labor relations; extent of employee interchange; degree of interdependence of autonomy of the facilities; differences or similarities in skills or functions of the employees; geographical location of the facilities in relation to each other; and possibility of over-fragmentation of bargaining units."
Section 48-838, R.R.S. 1943, was first enacted in 1972 as section 4 of L.B. 1228, Laws 1972. It is clear from the context of that statute that prior bargaining history, whether it occurred under the auspices of the Court of Industrial Relations or not, was to be considered, for if that were not so, section 48-838(2) R.R.S. 1943, could not have had any initial application. The statute contains no indication whatever that this was intended. This is also clear from the fact that the last sentence of section 48-838(2), R.R.S. 1943, contains the provision that in the case of certain governmental entities "with no previous history of collective bargaining" that units of less than departmental size shall not be appropriate. The reference to no previous bargaining history would not have had any meaning unless it included bargaining history other than under the act. This conclusion is also apparent from the historical development of the jurisdiction of the commission.
Until the enactment of L.B. 15, Laws 1969, jurisdiction of the commission, insofar as governmental employees were concerned, could not be invoked other than on a voluntary basis, except in "industrial disputes involving governmental service in a proprietary capacity." L.B. 537, Laws 1947, c. 178, § 10, p. 590; L.B. 875, Laws 1967, c. 305, § 1, p. 828. L.B. 15, Laws 1969, permitted governmental employers to recognize, negotiate collectively with, and enter into contracts with employee organizations. It also provided a method for certification of employee organizations and granted them the right to bargain collectively. In 1972, the certification procedure was greatly amplified. Elections to determine bargaining representatives were included. The provision of section 48-838(2), R.R.S. 1943, previously quoted, to wit, "the court shall consider established bargaining units and established policies of the employer," came into law for the first time. L.B. 1228, Laws 1972.
...It is apparent from the commission's opinion that it, to some extent, discounted or disregarded that bargaining history. This it was not free to do.
The "black letter" rules applicable to a decision in this case are clearly set out in Syllabus I to the Supreme Court's decision in Sheldon Station Employees Association v. Nebraska Public Power District , 202 Neb. 391, 275 N.W. 816 (1979):
In attempting to determine the appropriate unit for exclusive bargaining purposes under the provisions of the Nebraska Court of Industrial Relations Act, the mutuality of interest in wages, hours and working conditions, duties and skills of employees, extent of union organization among employees, the desires of employees, a policy against fragmentation of units, the established policies of the employees (sic, employer), and the statutory mandate to insure proper functioning and operation of governmental service, are to be considered. Those factors, however, are not the only factors to be considered, nor must each such factor be given equal weight. The factors appropriate to a bargaining unit consideration and the weight to be given each such factor must vary from case to case depending upon its particular applicability in each case.
The Sheldon Station opinion states further (202 Neb. at 395-396, 271 N.W.2d at 818):
In its order dated November 1, 1977, the CIR declared "it is settled law that in tailoring the appropriate unit, we consider the mutuality of interest in wages, hours and working conditions (community of interest), duties and skills of employees, extent of union organization among employees, desires of the employees, a policy against fragmentation of units, the established policies of the employer, and the statutory mandate to assure proper functioning and operation of governmental service.
While it is true these factors are to be considered, it is likewise true that they are not the only factors to be considered, nor must each such factor be given equal weight. The factors appropriate to a bargaining unit consideration and the weight to be given each such factor must vary from case to case depending upon its particular applicability in each case. City of Grand Island v. American Federation of S.C. & M Employees , 186 Neb. 711, 185 N.W.2d 860; American Assn. of University Professors v. Board of Regents , 198 Neb. 243, 253 N.W.2d 1.
Likewise, in reviewing factors such as "established policies of the employer," "fragmentation," and "degree of unionization desires of employees," we must keep in mind the clear dictates of the statutes. These factors must be examined in light of the statutory presumption contained in section 48-838(2), R.S. Supp., 1976, which provides as follows: "***It shall be presumed, in the case of governmental subdivisions such as municipalities, counties, power districts, or utilities with no previous history of collective bargaining, that units of employees of less than departmental size shall not be appropriate."
In interpreting that section, we have previously said: "'It is clear that in enacting subsection (2) of section 48-838, the Legislature properly sought to avoid undue fragmentation of the bargaining units. ***It (undue fragmentation) fosters proliferation of personnel necessary to bargain and administer contracts on both sides of the bargaining tables. It destroys the ability of public institutions *** to develop, administer, and maintain any semblance of uniformity or coordination in their employment policies and practices.'" House Officers Assn. v. University of Nebraska Medical Center , 198 Neb. 697, 255 N.W.2d 258. Clearly, it is the intent of the Legislature that fragmentation of bargaining units within the public sector is to be avoided.
Applying these principles, we find that the Employees Council has made a prima facie case for inclusion of all of the job classifications in its requested appropriate bargaining unit. The requested unit is an established bargaining unit. The established policies of the City of Omaha have grouped these job classifications together in Ordinance 29371, Section 1, Part A, Classification Civilian Management. There is a demonstrated prior mutuality of interest in wages, hours and working conditions among these job classifications, although there are differences in the duties and skills of the employees. The Employees Council is an existing union organization among these employees. There is an apparent desire of these employees collectively to be grouped together in the requested unit for representational purposes. The policy against undue fragmentation of units operates in favor of larger units over smaller units. The statutory mandate to insure proper functioning and operation of governmental service seems to have been demonstrated from the direct testimony that no problems of this sort have arisen during the previous years in which this bargaining unit has been in existence.
Several of the objections of the City of Omaha to the inclusion of certain job classifications involve primarily the factor of fulfilling the statutory mandate to insure proper functioning and operation of governmental service. There was testimony that problems of this sort have not arisen in the past. Nevertheless, the City of Omaha contends that over a period of time, there is a substantial potential for these problems to arise, especially after an exclusive bargaining relationship becomes more formalized as a result of the certification process. As shown on the Table above, the City of Omaha argues that inclusion of some of the job classifications presents a general potential conflict of interest, a potential conflict of interest from participation in labor negotiations, operational problems because of access to and work with general personnel information, and operational problems because of the exercise of supervisory functions.
Attorneys in the classifications of Attorney I, II, III, IV and City Attorney are advisors to the Mayor, City Council, and other primary City officials on legal and related matters, including labor relations, collective bargaining negotiations, and litigation in the Commission of Industrial Relations as this case demonstrates. We conclude that this potential conflict of interest and the policies underlying independent legal judgment and advice warrant exclusion of these attorney job classifications from the bargaining unit.
The City of Omaha contends that the additional classifications of Assistant to the City Council, Deputy City Clerk, City Clerk, Personnel Specialist, Personnel Technician I, II, III, IV, City Comptroller, and Accountant I, II, III, IV should be excluded from the purported bargaining unit because these positions handle confidential matters relating to labor relations and labor negotiations which would create a conflict of interest.
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). We agree that there is potentially a substantial conflict of interest if employees having access to a public employer's confidential information pertaining to collective bargaining negotiations are included within the bargaining unit.
The classifications of Assistant to the Omaha City Council, City Clerk, and Deputy City Clerk are responsible for obtaining and conveying confidential information to the City Council which concerns labor negotiations. For this reason, these positions should be excluded from the bargaining unit.
The positions of Personnel Specialist and Personnel Technician I, II, III, and IV also accumulate and disperse confidential information relating to labor relations which warrants their exclusion from the unit.
The City Comptroller assists the Personnel Department at times during the labor negotiation process. By virtue of this participation in the collective bargaining process, the position should be excluded from the bargaining unit. The City Comptroller also should be excluded because of the high degree of supervisory responsibilities which this position carries.
The classifications of Accountant I, II, III, and IV are significantly different. Although one accountant is temporarily assigned to assist the City of Omaha bargaining team in labor negotiations, the evidence does not show that these job classifications deal substantially with confidential matters pertaining to labor negotiations.
The City of Omaha contests the inclusion of a number of job classifications on the basis that persons holding these positions exercise supervisory functions over other members of the bargaining unit. Persons exercising any supervisory functions are excluded from "rank and file" employees' bargaining unit. See City of Grand Island v. AFSCME , 186 Neb. 711, 185 N.W.2d 860 (1971). Under Nebraska law, supervisors are entitled to representation through supervisory units if such units are sufficiently separate from the "rank and file" units to prevent a conflict of interest on the part of the supervisory employees. Nebraska Association of Public Employees v. Nebraska Game and Parks Commission , 3 C.I.R. 83 (1975), affirmed 197 Neb. 178, 247 N.W.2d 449 (1977).
It is inherent in a middle-level management bargaining unit that there be some hierarchy of supervisory and managerial responsibility and authority. The evidence in this case shows that there are different echelons of managers in the group under consideration. In determining the appropriate bargaining unit for persons having supervisory authority, the factor of insuring a proper functioning and operation of governmental service takes on a special significance. The requirement of insuring a proper functioning and operation of governmental service involves a protection of the public employer's interest in making managerial policies and decisions, in conducting collective bargaining negotiations, and in conducting the operation of the governmental service. As noted above, the evidence in this matter shows that prior negotiations between the parties involving the unit claimed by the Employees Council has not hindered the proper functioning and operation of governmental services of the City of Omaha.
From the evidence, we find that the following job classifications should be excluded from the bargaining unit because they possess such a high degree of managerial and supervisory responsibility as to constitute a potential substantial limitation of the proper function and operation of governmental services of the City of Omaha under the applicable rules set out and discussed above: City Comptroller (also excluded from participation in labor negotiations), City Attorney (also excluded for general conflict of interest and participation in labor negotiations), City Engineer (although not formally contested), Permits and Inspection Superintendent (although not formally contested), and Park and Recreation Superintendent. We have examined each of the other job classifications contested by the City of Omaha in its pleadings, at the hearing, or in its post-hearing brief on the basis of supervisory responsibilities and determine that they do not involve such a high degree of managerial and supervisory responsibility as to require their exclusion from the bargaining unit under the applicable rules.
We have also examined each of the job classifications contested by the City of Omaha on the basis that different training and education requirements are involved and that there are substantially different salaries and conditions of employment. The evidence does not contain any indication that these distinctions have actually caused problems in the past or are likely to cause either bargaining or operational hindrances in the future. Accordingly, the job classifications are not excluded from the bargaining unit for this reason.
It is therefore ORDERED that:
1.The appropriate bargaining unit is defined as the following: "All regular and full-time employees of the City of Omaha involved in management, technical and professional occupations, except as stated below:
Excluding all appointed and elected officials; seasonal employees; and the positions of City Comptroller; City Engineer; Permits and Inspection Superintendent; Parks and Recreation Superintendent; Assistant to the City Council; City Clerk; Deputy City Clerk; Personnel Specialist; Personnel Technician I, II, III and IV; City Attorney; and Attorney I, II, III, and IV.
2.Those job classes in the appropriate bargaining unit are the following positions in the City of Omaha.
Office Administration & Management Engineering
Secretary to the City Council
Executive Secretary
Office Manager
Word Processing Supervisor
Public Events Coordinator
Public Events Manager
Assistant Civil Defense Coord.
Civil Defense Coordinator
Data Processing
Fiscal Specialist
Systems Analyst
Data Processing Supervisor
Finance
Graphics & Printing Foreman
Chief Cashier
Buyer
Purchasing Agent
Payroll Supervisor
Accountant I, II, III, IV
Personnel
Safety Inspector
Human Relations
Draftsman III
Right of Way Agent II
Engineering Aide III
Engineering Technician I, II
Engineering Services Manager
In Service Technician
Civil Engineer I, II, III, IV
Traffic Engineer
Public Works Maintenance Engineer
Public Works Inspector II
Sanitation
Sampling Foreman
Chemist
Chief Chemist
Wastewater Treatment Plant Foreman I
Wastewater Treatment Plant Supervisor
Solid Waste Supervisor
Sanitation Engineer
Industrial Waste Testing Manager
Inspection
Chief Housing Inspector
Human Relations Specialist
Human Relations Representative I, II, III
Library
Library Specialist
Librarian I, II, III
Assistant Library Director
Legal
Legal Investigator
Planning
Planner Specialist
City Planner I, II, III, IV
Urban Renewal Administrator
Housing and Community Development
H.C.D. Technician I, II, III, IV
Special Programs Manager
H.C.D. Specialist
Community Developer II
Community Development Manager
Communications
Senior Communications Operator
Deputy Chief of Communications
Chief of Communications
Building Maintenance
Building & Ground Manager
Property Inventory Specialist
Property Inventory Supervisor
Chief Building Inspector
Chief Field Inspector
Chief Weights & Measures Inspector
Chief Air Quality Control
Inspector
Plains Examiner
Labor Supervision
City Maintenance Foreman I, II, III
City Maintenance Supervisor
City Maintenance Superintendent
Fire Equipment Foreman
Asphalt Planet Operator II
Stationary Engineer II
Automotive Repair Foreman
Security Coordinator
Criminalist
Crime Analyst
Forestry
Assistant Forester
Forester
Parks and Recreation
Greenskeeper
Parks & Recreation Planner I, II
Parks Manager
Recreation Supervisor
Recreation Coordinator
Recreation Manager
3. Within 10 days of this Order, the City of Omaha shall submit to the Clerk of the Commission a typed, alphabetized list of the employees who are in the appropriate bargaining unit ordered as of the filing date of the Petition, April 21, 1982, or the nearest payroll date thereto, in order to determine whether at least thirty percent of the employees in the appropriate unit have requested in writing that the Commission hold a representation election.
All Judges assigned to the Panel in this case join in the entry of this Order.
Filed July 2, 1982.
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