7 CIR 122 (1983)


NEBRASKA, A Municipal | REP. DOC. NO. 171
Corporation, |
Petitioner, |
Respondent. |

Appearances :

For the Petitioner: William A. Harding

Nelson & Harding

P.O. Box 82028

Lincoln, Nebraska

For the Respondent: Ronald Rosenberg

Rosenberg, Gibson & Taute

800 Terminal Building

Lincoln, Nebraska

Before : Judges Gradwohl, Davis and Kratz


This matter came on for trial upon Petitioner's Petition for Bargaining Unit Clarification and Respondent's Answer. By its Petition, Petitioner seeks an Order modifying the scope of the bargaining unit for employees represented by the Respondent so as to exclude the Lieutenants from the bargaining unit.

The controlling statute is Section 48-816(3):

All firemen and policemen employed in the fire department or police department of any municipal corporation in a position or classification subordinate to the chief of the department and his immediate assistant or assistants holding authority subordinate only to the chief, shall be presumed to have a community of interest and may be included in a single negotiating unit represented by an employee organization for the purposes of this act. Public employers shall be required to recognize an employee's negotiating unit composed of firemen and policemen holding positions or classifications subordinate to the chief of the fire department or police department and his immediate assistant or assistants holding authority subordinate only to the chief when such negotiating unit is designated or elected by employees in the unit.

The special bargaining unit composition rule of Section 48-816(3) was enacted in LB 1402 of 1972. In describing the applicability of this legislative change to Captains and Lieutenants of the Grand Island Fire Department, the Supreme Court said in Local Union No. 647 International Association of Firefighters v. City of Grand Island, 196 Neb. 693, 244 N.W.2d 515 (1976):

"We have previously held that these officers are supervisory personnel and because of a conflict of interest between their public duties and their union obligations they should not be included in a bargaining unit with subordinate employees. See City of Grand Island v. American Federation of S. C. & M. Employees, 186 Neb. 711, 185 N.W.2d 860. Since that decision was rendered the Legislature has amended section 48-816, R.R.S. 1943, to permit firemen and policemen who are "subordinate to the chief of the department and his immediate assistant or assistants holding authority subordinate only to the chief' to be included in a bargaining unit with subordinate employees. Grand Island has a deputy chief and fire marshal who are subordinate only to the chief thus leaving captains and lieutenants free under the statute to join with subordinate employees in a bargaining unit. The city challenges this statute on constitutional grounds asserting that it is special legislation and makes an erroneous classification. The statutes of Nebraska do not prohibit other types of public employees acting in supervisory capacities from membership in bargaining units although the reasoning in the former Grand Island case would appear to do so. In a majority of the states which have adopted labor relations acts, they have failed to follow the federal example and bar supervisory employees from membership in bargaining units. We know of no instance in which statutes sanctioning or barring supervisory personnel as regards entry into bargaining units has been ruled unconstitutional.

"Our present statute appears to espouse an intermediary stance as to firemen and policemen. It recognizes the conflict of interest which can result when supervisory personnel assume labor union obligations. The statute consequently bars the higher echelon of officers in these departments from entering into bargaining units but leaves the lower echelons free to do so. May the Legislature lawfully classify firemen and policemen differently than other public employees? Basically these two groups have duties, obligations, and responsibilities totally different from those of other public employee groups. They are primarily responsible for the protection of life and property. They are on a perpetual emergency basis. Their memberships are closely knit and in working together their lives are often dependent on fellow members. A close kinship between the members and their officers develops. This closeness and a recognition of the elements mentioned promotes efficiency and a willingness to work together. The development of these traits is in the public interest and the Legislature, in its discretion, has refrained from interfering with departmental relationships except where it deemed it to be essential to the interest of the employer that it do so."

196 Neb. at 694-695.

The facts of the present case show a substantial reorganization of the North Platte Police Department. Prior to the reorganization, Lieutenants reported to Captains who alone were subordinate to the Police Chief. Under the reorganization plan, the Lieutenants will report directly and only to the Police Chief. Lieutenants will no longer report to Captains. While Captains will also report directly and only to the Police Chief, Captains will no longer supervise Lieutenants in any manner except when serving as Acting Police Chief in the absence of the Police Chief.

The Commission is acting on the assumption that the reorganization plan is bona fide and will be adhered to in practice. If that is not correct, either party is free at any time to file a further request for clarification of the bargaining unit.

Based on the record, we find the position of Lieutenant is a supervisory position subordinate only to the Chief. The Commission, therefore, will exclude that position from the bargaining unit in accordance with Section 48-816(3).

IT IS THEREFORE ORDERED that the certified bargaining unit for employees of the Petitioner represented by the Respondent be modified to include:

All employees of the North Platte Police Department excluding the Police Chief, the Administrative Secretary, Captains and Lieutenants.

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

Filed September 9, 1983