|FRATERNAL ORDER OF|||||CASE NO. 460|
|POLICE, LODGE NO. 16,|||||REPRESENTATION DOC.NO.156|
|V.|||||OPINION AND ORDER UPON|
||||REHEARING EN BANC|
For the Petitioner:Dennis M. Connoly
335 Lakin Building
8990 West Dodge Road
For the Respondent:William A. Harding
Nelson & Harding
500 The Atrium
1200 N Street
Paul M. Schumacher
Platte County Attorney
P.O. Box 122
Before: Judges Orr, Kratz, Gradwohl, Berkheimer, and Davis(EN BANC)
This matter comes before the Commission on Defendant's motion for reconsideration by the Commission en banc and motion for new trial. The Commission grants the Defendant's Motion for reconsideration before the Commission en banc on the record heretofore made and briefs submitted by the parties. The Commission denies the motion for new trial.
The County's Brief argues that the inclusion of the Sergeant, Sergeant-Investigator, Head Jailer and Corporal in the bargaining unit is inappropriate because they all perform supervisory duties.
In City of Grand Island v. American Federation of State, County, and Municipal Employees , 186 Neb. 711, 716, 185 N.W.2d 860, 864 (1971) (relied upon in the County's Brief), the Supreme Court stated that:
"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."
In the record we find that the Sergeant and Corporal are shift commanders with a total of five deputies working the shifts. The Head Jailor is in charge of supervising the jail and its eight employees. The Sergeant-Investigator testified that he supervised no one and reported only to the Sheriff.
Based on this reexamination of the record we find the Sergeant, Corporal and Head Jailor responsibly direct other employees and should be classified as supervisory personnel and excluded from the employee bargaining unit.
The County's Brief argues that the inclusion of the Secretary of the department, Judy Pettijohn, in the bargaining unit is inappropriate for several reasons: that the petition improperly seeks to include both guards and non-guard employees within the same bargaining unit; that the Union is not qualified to represent the non-guard employees it seeks to include within the bargaining unit; that Judy Pettijohn performs predominantly secretarial duties and not law enforcement duties; and that the Commission erred in concluding that she may be a member of the bargaining unit because the local lodge has admitted her to membership.
In University Police Officers Union v. University of Nebraska , 203 Neb. 4, 277 N.W.2d 529 (1979), reversing 3 CIR 225 (1977) (relied upon in the County's Brief), the Supreme Court stated that "the record does not indicate to us any significant reasons why the fact that they (commissioned police officers and noncommissioned security officers at UN-L) have sought commissions from other governmental agencies or the fact that they carry weapons is sufficient to entitle them to be separate and apart from other C-line or B-line employees at UNL." See 203 Neb. at 19-21. Judy Pettijohn is a Secretary who also serves as a Matron in the Sheriff's Department. In Fraternal Order of Police v. County of Adams , 205 Neb. 682,289 N.W.2d 535 (1980), affirming 3 CIR 585 (1978), both the Supreme Court and Commission held, based on the evidence in that case, that the comparison of wages for Secretary/Matron in the Adams County Sheriffs Department should be made with positions in other Sheriff s departments rather than Secretaries in the City of Hastings Police Department or Secretaries of selected private employers because of the nature of the work duties performed.
It is well settled that decisions under the National Labor Relations Act are helpful but not controlling in cases arising under the Nebraska public employment bargaining statutes. See City of Grand island v. AFSCME , 186 Neb. 711,185 N.W.2d 860 (1971). The Nebraska statutes contain no provision like Section 9 (b) of the National Labor Relations Act, paragraph (3) of which the County is urging the Commission to apply in this instance.
The Nebraska public sector bargaining statutes seek to avoid an "over-fragmentation of bargaining units." See American Association of University Professors v. Board of Regents , 198 Neb. 243, 253 N.W.2d 1 (1977). Section 48-838(2) states that "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." Nebraska Supreme Court decisions make clear that the evidence must demonstrate that there is a conflict of interest which would render inappropriate a representation by the labor organization seeking certification as bargaining agent under the Nebraska statutes. See Lincoln City Employees Union v. City of Lincoln , 210 Neb. 751, 317 N.W.2d 63 (1982); Nebraska Association of Public Employees v. Nebraska Game and Parks Commission , 197 Neb. 178, 247 N.W.2d 449 (1976). In Sheldon Station Employees Association v. Nebraska Public Power District , 202 Neb. 391, 275 N.W.2d 816 (1979), the Supreme Court stated "Before the statutory restrictions against undue fragmentation in the public employment area prescribed by section 48-838 (2), R.S. Supp., 1976, can be overcome, there must be strong evidence justifying the need and the propriety of such additional division." 202 Neb. at 399-400. The Commission's Order entered September 28, 1982, properly found that there is insufficient evidence to exclude the secretary of the department from the bargaining unit in this case.
IT IS THEREFORE ORDERED that the appropriate bargaining unit determined in the Commission's Order of September 28, 1982, is hereby amended to read as follows:
"All employees of the Platte County Sheriff's Department excluding the County Sheriff, Chief Deputy, Sergeant, Corporal and Head Jailor."
IT IS FURTHER ORDERED that in all other respects the Commission's Order of September 28, 1982, is affirmed.
All Judges of the Commission join in the entry of this Opinion and Order.
Entered November 12, 1982.