|CITY EMPLOYEES ASSOCIATION a/k/a|||||CASE NO. 482|
|LINCOLN CITY EMPLOYEES ASSOCIATION,||||
|v.|||||OPINION AND ORDER|
|CITY OF LINCOLN||||
|LINCOLN CITY EMPLOYEES UNION, LOCAL||||
|R 9-38 of the NATIONAL ASSOCIATION OF||||
For the Plaintiff:John R. Baylor
Baylor, Evnen, Curtiss, Grimitt & Witt
1200 American Charter Center
For the Defendant:Dana W. Roper
Assistant City Attorney
For the Third Party:Robert R. Gibson
Rosenberg, Gibson & Taute
800 Terminal Building
Before: Judges Gradwohl, Orr and Davis.
The Plaintiff (LCEA) is the recognized exclusive bargaining representative of a number of classifications of professional, supervisory and highly technical employees and upper-level management division directors of the City of Lincoln. The Third Party (NAGE) is the certified exclusive bargaining representative of a number of classifications of full-time regular employees of the City of Lincoln engaged in office, clerical, labor and trades positions. After resolving a number of contested issues at the outset of this case, LCEA and NAGE have both entered into collective bargaining agreements with the City of Lincoln for the contract year 1982-1983. The sole remaining matter of industrial dispute concerns the appropriate bargaining units after 1982-1983.
LCEA and the City proposed a settlement, in which NAGE did not join, of the remaining issue of the appropriate bargaining units after 1982-1983, by the following Stipulation and Motion:
(1) That employees in the following classifications currently represented by LCEA be represented by NAGE:
Class CodeClass Title
1313Bulk Gasoline Distributor
3109Public Service Officer
3690Animal Control Officer
4106Library Assistant I
4107Library Assistant II
(2) That employees in the following classifications in the Library and Health Departments who are currently either "excluded" or represented by LCEA be represented by NAGE:
Clerk Typist II
Clerk Typist III
Account Clerk I
Maintenance Repair Worker Delivery Clerk
(3) That employees in the following classifications currently represented by NAGE be represented by LCEA:
Class CodeClass Title
1461EDP Production Control Specialist
1476Systems Analyst/Programmer I
5010Labor Supervisor I
5109Utility Plant Equipment Supervisor
5307Wastewater Plant Operator II
5316Water Plant Operator II
5318Wastewater Sample Collector Supervisor
5329Water Meter Shop Supervisor
The City's position was explained "in general terms" as follows (Record, page 5):
"The classes that are presently in CEA that we're requesting go to NAGE we feel have a commonality of interest with those already in NAGE, they being either clerically oriented, laboring or low technically skilled. The classes we would like to go from NAGE to CEA are strictly supervisory in nature."
The evidence supports these determinations by the City. While the classifications of Program Trainee and Systems Analyst/Programmer I are not supervisory (and no one is currently employed in these classifications), they are interim training steps, if needed, for highly skilled technical or supervisory classifications.
Twenty-three employees of the Lincoln-Lancaster County Health Department objected to their transfer to the NAGE unit, stating that they wished to continue to be represented by LCEA as they had in the past and that they wished to be included in the same unit with their fellow Health Department employees. A Maintenance Supervisor and Utility Supervisor from the waste water treatment plant testified at the trial that they have been active members of NAGE and wish to continue to be represented by NAGE and that they should not be considered as supervisors insofar as restructuring the bargaining units is concerned.
The "black letter" rules applicable to fashioning appropriate bargaining units are clearly set out in Syllabus 1 to the Supreme Court's decision in Sheldon Station Employees Association v. Nebraska Public Power District , 202 Neb. 391, 275 N.W.2d 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 give 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, 275 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 table. 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."
The "black letter" rule as to inclusion of supervisors in employee bargaining units is succinctly set out in Syllabus 3 of City of Grand Island v. AFSCME , 186 Neb. 711, 185 N.W.2d 860 (1971), and is a rule which has been consistently followed since then:
"Individuals who are authorized to responsibly direct other employees are supervisory employees and should be excluded from an employee bargaining unit."
The Supreme Court emphasized that it was the "authority to responsibly direct" other employees which makes an individual a supervisor under the public employment bargaining law even though the authority may be exercised for only a portion of the working time and even though the individual has no authority, generally, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees. Although persons exercising any supervisory functions are excluded from "rank and file" employees' bargaining units, 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 CIR 83 (1975), affirmed 197 Neb. 178, 247 N.W.2d 449 (1977); Civilian Management, Professional and Technical Employees Council v. City of Omaha , 6 CIR 187, 201 (1982).
The realignment of bargaining unit classifications proposed by
LCEA and the City in the Stipulation and Motion filed November 19, 1982, is supported by the evidence introduced at the trial and is in complete accord with the foregoing "black letter" rules. While the history of bargaining and the wishes of employees are important factors, it would not be proper to include supervisors in an employees' bargaining unit. The employees in the Health Department should not be included within a supervisory unit and the waste treatment plant supervisors should not be included within an employees' bargaining unit. Further, the evidence establishes a community of interest in wages and working conditions between employees in the Health and Library Departments with similar classifications of employees in other departments of the City of Lincoln and a community of interest between the supervisory positions to be transferred from the NAGE unit to the LCEA unit with other supervisory classifications of the City of Lincoln.
It is, therefore, Ordered that the proposed realignment of appropriate bargaining units contained in Plaintiffs and Defendant's Stipulation and Motion Re Dismissal, filed November 19, 1982, be approved as the basis for settlement of the industrial dispute between the parties by the Commission and that the units established as a result of this Order be those described in Appendix A hereto for the Plaintiff and in Appendix B hereto for the Third Party, effective for representation with respect to periods following the 1982-1983 contract year.
All Judges assigned to the panel in this matter join in the entry of this Opinion and Order.
Filed December 28, 1982
APPENDIX A and B have been deleted.