7 CIR 248 (1984). Affirmed. 222 Neb. 197, 382 N.W.2d 613 (1986).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

CITY OF OMAHA, a Municipal | CASE NO. 548
Corporation, |
|
Plaintiff, |
|
v. | FINDINGS AND ORDER
|
OMAHA POLICE UNION LOCAL 101, |
|
Defendant. |

Appearances:

For City of Omaha: Kent N. Whinnery

Deputy City Attorney

804 Omaha/Douglas Civic Center

Omaha, Nebraska

For Omaha

Police Union: Bruce G. Mason

Ross, Mason, Mason, Fennell and Smith Suite 301, Tower Plaza Bldg.

Omaha, Nebraska

Before: Judges Gradwohl, Orr, and Mullin

GRADWOHL, J:

The City of Omaha seeks a determination in this proceeding that the rank of Captain should no longer be included in the bargaining unit represented by Omaha Police Union Local 101. The Union contends that the present bargaining unit is appropriate by virtue of Section 48-816(3).

The Omaha Police Division has approximately 570 sworn officers. Under the Public Safety Director, there are a Chief of Police, five Deputy Chiefs (including one Assistant Chief), eight or nine Captains, approximately 30 Lieutenants, approximately 100 Sergeants, and the rest in the Police Officer rank. The Captains report to a Deputy Chief and the Deputy Chiefs report to the Chief of Police.

The Captains exercise a high degree of authority and responsibility. They are section, shift and bureau commanders, supervise more than 100 officers and civilians in some instances, work mainly at the Division Headquarters rather than in the field, and are the highest ranking officers on duty more than two-thirds of the time. It is clear that under the normal rules for determining appropriate bargaining units under the Nebraska public employment bargaining statutes, these Captains would be "supervisors" and not properly a part of an employee unit.

For a number of years, Captains have been a part of the police officer bargaining unit by virtue of Section 48-816(3), which provides:

"All fireman and policeman 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 designed or elected by employees in the unit."

The City and Union agree that Section 48-816(3) is controlled in this matter. The statutory language was enacted by L.B. 1402 in 1972 as a Legislative response to the Nebraska Supreme Court's decision in City of Grand Island v. American Federation of State, County, and Municipal Employees, 186 Neb. 711, 185 N.W. 2d 860 (1971). In setting aside the Commission's determination that captains and lieutenants of the Grand Island Fire Division should be included in the bargaining unit, the Supreme Court's Opinion states:

"The fire division consists of the chief, 3 assistant chiefs, 6 captains, 3 lieutenants, and 27 unranked personnel classified as firefighters. An assistant chief is in direct control of each shift while it is on duty. There are two fire stations, and a captain is in charge of the station to which he is assigned while he is on duty. The lieutenants are in charge of the ladder company which is based at Station No. 1. The job specifications for the captains and lieutenants appear to be the same although the education and experience requirements are somewhat different.

"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.

"As we view record the captains and lieutenants should be classified as supervisory personnel and excluded from the employee bargaining unit of the fire division. The order of the Court of Industrial Relations should be modified accordingly. The order as modified is affirmed.

186 Neb. at 715-716; 185 N.W. 2d at 864.

The legislative history of the enactment of L.B. 1402 in 1972 is quite extensive. As introduced, L.B. 1402 applied only to fire fighters. After a lengthy and sharply contested hearing, which included opposition by the City of Omaha and other cities, the Bill was advanced by the Labor Committee with an amendment to include policemen. The Committee amendment to include policemen was adopted by the Legislature and the Bill was debated at considerable length on the floor of the Legislature. Finally, the Bill passed by a minimal 25 to 19 vote on final reading and was signed into law by the Governor. Appendix 1 hereto contains a record of the testimony at the Labor Committee hearing. Appendix 2 contains the Labor Committee Report on L.B. 1402. Appendix 3 contains a record of the Legislative Floor Debate. Appendix 4 contains pages from the 1972 Nebraska Legislative Journal.

Prior to the Supreme Court decision in City of Grand Island v. AFSCME, the Commission had held that Omaha Police Captains were supervisors and not properly a part of the police officers' bargaining unit. In Matter of City of Omaha Police Union and Omaha Association of Firefighters, 1 CIR No. 32 at 32-11 and 32-12 (1971), the Commission stated:

"(1) The Battalion Fire Chief and the Police Captain are at a sufficiently high level in their respective organizational chain of command that they would most naturally identify with management. To leave this officer in the bargaining unit under this circumstance can conceivably place management on both sides of the bargaining table. This circumstance can generate strife in both ranks, labor and management, a condition which is not consistent with insuring the continuous operational efficiency of governmental service, or of insuring that both parties are adequately represented at the bargaining table.

"(2) The union-management relationship, under certain regularly foreseeable circumstances, is an adversary relationship. Where supervisors, such as the Battalion Fire Chief and Police Captain, are members of the union bargaining unit, they can be placed in an uncomfortable and awkward situation. The Battalion Fire Chief and the Police Captain represent management to their subordinates, yet, as a member of the union, they may treat management as an adversary in certain employment situations.

"This can create a conflict of interests which is not consistent with insuring the continuous operational efficiency of government service. Where there are divided loyalties at the significantly high level of supervisory authority enjoyed by Battalion Fire Chiefs and Police Captains, the operational efficiency of the government can suffer, and this Court recognized, in the Fremont case, 'the importance of avoiding 'divided loyalties,' if possible, insofar as both the management of the operations and the conduct of the collective negotiations are concerned."'

Following the enactment of Section 48-816(3), Omaha Police Captains were brought into the bargaining unit. They have been represented since then by the Omaha Police Union as statutory exclusive bargaining agent.

The validity of Section 48-816(3) was sustained in Local Union No. 647 v. City of Grand Island, 196 Neb. 693, 694-695, 244 N.W. 2d 515, 516-517 (1976), which reasoned:

"The captains and lieutenants in the fire department expressed an intent to join the union. The city objected on the ground that they were supervisory personnel and hinted that union membership would be considered in regard to future promotions. The officers withdrew their union membership applications. Under such circumstances the issue is not moot as an element of duress is involved. 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 fireman and policeman 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. 'It is competent for the Legislature to classify for purposes of legislation, if the classification rests on some reason of public policy, some substantial difference of situation or circumstance, that would naturally suggest the justice or expediency of diverse legislation with respect to the objects to be classified.' Stahmer v. State, 192 Neb. 63, 218 N.W. 2d 893."

The Supreme Court Opinion added:

"The city asserts that its action in meeting with the captains and lieutenants and pressuring them not to join the local bargaining unit was permissible. Section 48-837, R.R.S. 1943, grants to public employees the right to join any employee organization they choose. In Mid-Plains Education Assn. v. MidPlains Nebraska Tech. College, 189 Neb. 37, 199 N.W. 2d 747, it is stated: 'If the employee can demonstrate that adverse action against him was motivated by a desire to discourage or retaliate

for union membership or activity, the action is unlawful."'

196 Neb. at 696; 244 N.W. 2d at 517.

The City of Omaha contended that police captains and lieutenants should not be included in the bargaining unit in City of Omaha Omaha Police Union Local No. 101, 5 CIR 103 (January 27,1981). After quoting from Section 48-816(3), the Commission's Opinion and Order states:

"Since there are two officer classification superior to the captains and three superior to the lieutenants, it is presumed that the captains and lieutenants have a community of interest with the members of the existing negotiating unit, which also includes sergeants and patrolmen.

"This statutory language, of course, is permissive and may be rebutted by petitioner's evidence. Petitioner argues that the captains and lieutenants exercise sufficient supervisory and management functions to be separated from the sergeants and patrolmen, and that there is an adversary relationship between the captains and lieutenants and the remainder of the bargaining unit subordinate to them.

"The evidence shows that the captains and lieutenants do exercise supervisory functions, but so do the sergeants. And if there is any adversary relationship between the various classifications in the Omaha police department, it would seem to apply equally, that is, there is as much or little adversary relationship between the captains and lieutenants as the lieutenants and sergeants and the sergeants and patrolmen. Also, the chain of command which operates in the Omaha police department seems to leave each descending link with a little less management and supervisory authority. How you apply all of this to the community of interest standard for collective bargaining units is not clear or easy. Perhaps that is why we have the statutory presumption, and we have no hesitancy in applying it here and ruling that this presumption has not been rebutted by respondent's evidence. 5 Therefore, we hold that the captains and lieutenants and sergeants and patrolmen should be included in a single negotiating unit.

5 CIR at 109-110.

During the 1982 collective bargaining negotiations, the City presented a written proposal for the removal of captains and lieutenants from the bargaining unit. The 1983 negotiations included a written proposal by the City to remove the ranks of sergeant, lieutenant and captain from the bargaining unit.

It is clear that the current emphasis of the City of Omaha on removal of captains from the police officers' bargaining unit is attributable in a substantial degree to the professional opinions and management philosophy of its present Chief of Police, Robert C. Wadman. Chief Wadman testified at the hearing that the removal of captains from the police officers' bargaining unit was his "number one priority" in negotiations for the 1984 contract year (page 143, "it was my number one priority; it was the most important element of negotiations for me during that contract year.")

Chief Wadman determined that it was inappropriate for the rank of captain to be contained within the police officers' bargaining unit during the time he was being recruited for the position of Chief of Police. He testified (pages 136-137):

"I discovered the fact that the captains and lieutenants were members of the bargaining unit in the recruitment process going through. And I discussed that in concerns that I had regarding that situation both with the mayor and the recruitment group as I was going through. After assuming the responsibilities as chief of police, I spent a couple of months collecting information not only about that particular element, but as much information as I could about the history of the division before I started making any decisions."

Later in the direct examination of Chief Wadman, the record shows (pages 141-144):

"Q.

Chief, were -- We are at a point in time where after you had begun your tenure as chief of the Omaha Police Division when you became aware of the fact that the rank of captain was contained within the police bargaining unit, I believe you indicated you first became aware of that during some recruitment or --

"A.

Yes. As I was going through the selection process for the chief of police position I became aware of the fact that the bargaining unit encompassed the ranks of captain.

"Q.

Did that inclusion of a rank that high comport with your previous experience regarding the constitution of the bargaining units in other police divisions that you had been employed by?

"A.

No, sir, it was different.

"Q.

What was your previous experience with reference to the inclusion of ranks of captain in bargaining units where the rank of captain essentially compared to the rank of captain here in the Omaha Police Division?

"A.

Both that rank, the rank of captain, and the rank of lieutenant were not included in the bargaining unit of the majority of law enforcement agencies that I have worked for.

"Q.

Did you express your desire that that rank be moved from the bargaining unit to Mr. Troutman, the mayor or others who participated in the labor relations process?

"A.

I did not express the desire that it be, you know, brought out of that at that time. I brought their attention to my concerns in that regard and discussed it with them during the course of that recruitment process. Mr. Troutman, I don't believe I did discuss it with him. I did discuss it with the recruitment team, the commission that the mayor had selected for interview of the police chief position.

Q.

And when did you-when were you officially appointed in the police chief position?

"A.

March 1st, 1982.

"Q.

Is that prior to the commencement of labor negotiations for the contract year 1983 as they pertain to the police bargaining unit?

"A.

Yes, sir.

"Q.

Did you have any discussions with Mr. Troutman or others regarding your perception of the propriety of the inclusion of the rank of captain vis-a-vis the 1983 labor negotiations?

"A.

Yes, sir I did. I brought it to their attention, my concerns regarding that, then it was made part of the City's labor package.

Q.

Was that a successful endeavor with respect to the year 1983?

"A.

No, sir, it was not.

Q.

Did you reiterate your desires with respect to the removal of the rank of captain from the bargaining unit for the contract year 1984 to Mr. Troutman?

"A.

Yes, sir, I did.

Q.

Did you indicate in an order of things how important you felt that was to you in order to manage the Omaha Police Division?

"A.

Yes, sir, I did.

Q.

Where did that rank in your order of priorities in general and why?

"A.

It was my number one priority; it was the most important element of negotiations for me during that contract year. The reasons behind that are substantial, and I think-I don't want to kind of reinvent the wheel and go back to the very beginning, but in recognizing the functions of the police division, the scope of that, the quasi-military nature of law enforcement and the demands that that has on how employees conduct themselves and the requirements that management has in being sure that they conduct themselves by a good set of guidelines, that it leads back into the effectiveness of being able to do that on-in-under normal circumstances. When I say 'normal,' I would mean if the organization was very stable and no major changes or organizational adjustments necessary, in the situation where many new programs are coming into fruition that a re-evaluation of the division and its directions, that those kinds of major decisions are in full swing of the critical nature of that situation was compounded."

In response to a question concerning the "Indianapolis Plan" under which City vehicles are assigned to all sworn officers, the Chief said (pages 148-150):

"My objectives are that the police division, being a quasi military organization, requires discipline, requires a command presence and ability to function under rather trying circumstances. We have certain responsibilities in law enforcement, and again I don't want to bore you with too much detail; we went through the Cudahy strike of a year or so where we had very volatile situations and large crowds and people that are

unruly and need to be sometimes arrested, sometimes counseled and sometimes moved in a very volatile setting. And in those situations police officers have to act in a military fashion with good discipline and good management. In order to develop the captains' rank and the other ranks within the division, I felt it is incumbent upon me as the chief administrator to give to those ranks the ability to do the job, and that includes building the rank so that it has the kind of command presence necessary to conduct the discipline, and to have the kind of leadership that those situations require; whether it's the Stone Soul Picnic in the summer where we have three or four thousand people in a very heated situation in the summertime that is very volatile, or we have the Cudahy situation, or we have routine disciplinary procedures. Again, without being too philosophical, Kiser Wilhelm said it's the unbuttoned button that lost the war; did he really mean it was the fellow that didn't have his button buttoned that caused the war to be lost? I think what, in essence, he's saying is that discipline is an on-going process, it needs to be handled on a day-today basis. And with that in mind, the development of the rank requires that kind of a situation. Why do sergeants have stripes on their sleeve, and why do captains have bars on their shoulders? Everyone in the police division knows any one of these gentlemen is a captain, but there are certain functions and - not functions, but certain elements that those particular ranks have that generates and continues to add then to their ability to show leadership and discipline. I have attempted since the day I arrived here to try to add to those particular elements. As was indicated by Captain Mitchell, the captains' rank had deteriorated; there was discussion as to whether or not it should be continued or not. In my experience as a police administrator I felt very much that it's a rank that is a necessary element of the division, and I had a serious challenge to build a rank that had eroded over the last five years to a very few members, not only had it eroded in numbers, but it had eroded in responsibility, that much of the functioning of the division was handled by lieutenants. I had captains coming to my office and complain about the violation of chain of command that they were being circumvented in their responsibility. Those elements caused great concern for me in trying to reestablish the credibility of that rank division-wide, that captains were, in fact, critical key elements of the management team necessary for the organization to be back on the right track.

"With that in mind, I have tried to do many things in order to enhance the captains' positions and the lieutenants' positions. They have not been designed to extricate them from the union, they have been designed then to build them; that's kind of where I'm at."

The "Indianapolis Plan" is intended to increase visibility of law enforcement, decrease the response time of law enforcement personnel, increase the availability of law enforcement personnel, and improve community-police relationships. Chief Wadman testified that although he had discussed the "Indianapolis Plan" with the Union as bargaining representative, its implementation has not taken place because he did not want his conduct to be misinterpreted as refusal to bargain or as an attempt to extricate the captains from the union (see page 152).

In the spring of 1983, the captains were given parking spaces inside the police garage. The Commission ruled that the City's unilateral act of assigning parking stalls to a selective group of employees within the bargaining unit for what appeared to be primarily or exclusively economic perquisites of employment constituted a refusal to bargain in good faith under Section 48-816. See Omaha Police Union Local 101 v. City of Omaha, 7 CIR 179 (1984). On cross-examination during the present hearing, Chief Wadman testified (page 158):

"Q.

If I understand your testimony, Chief, that is essentially that the actions to the captains, for instance, the giving of the parking spots, was not designed to extricate them from a union, but it was designed to enhance the rank; is that correct?

"A.

Well, I gave the parking spots to the captains, to the lieutenants and to key civilian managers with the purpose of enhancing leadership within the division.

Q.

And how does a parking spot enhance leadership?

"A.

By giving that individual a sense of commitment to the division, by showing that that individual has some responsibility and authority within the division; just like myself, I park inside the garage, and just like the mayor who parks inside this building. Those little perks add to leadership.

"Q.

So rank has privileges?

"A.

Yes, sir.

"Q.

And that's the basis of it?

"A.

Not solely, no, sir.

Q.

Then what are the other bases?

"A.

As I told you, to add to leadership, discipline, the ability of those individuals to carry out that discipline, those kinds of things.

The 1983 collective bargaining negotiations reached an impasse in March. Chief Wadman issued a three and one-half page summary of the City's final offer. Paragraph 11 of Information Order -33-83, issued March 29, 1983, sets out the following City position:

"The Police Captains and Lieutenants will be approached up front by Management for the purpose of discussing with them the possibility of the Captains and Lieutenants forming their own bargaining unit.

The evidence reflects that several meetings of the captains were held during the summer and fall of 1983 at which the pros and cons of withdrawal from the police officers' bargaining unit were discussed. The captains did meet with representatives of the City, as well as the Union, and all of such meetings appear to have been "up front" as stated in Chief Wadman's statement.

The City claims that the Union agreed that if all nine captains then on the police force consented to withdrawal from the bargaining unit, the Union would not object. While the Union apparently did give indications to that effect, the evidence does not establish that there was an agreement, verbal or written, that if all of the captains then on the police force consented, the rank of captain would be deleted from the bargaining unit.

The issue came to a head in late December, 1983. In a letter dated December 23, 1983, received by the Union on December 27, 1983, the City requested "that the 1984 agreement between the City of Omaha and the current bargaining unit be amended to provide that the rank of captain is no longer a rank represented within the bargaining unit." A Memo dated December 28, 1983, from one of the captains to the City's Labor Relations Director sought answers from the City on a number of specific questions prior to a further meeting of the captains. The Labor Relations Director responded by a Memorandum to all Police Captains on December 29, 1983, that he could not answer the questions because the City was required to deal exclusively with the Union as the recognized bargaining agent for the captains.

On December 30, 1983, the captains sent to the Union a letter signed by all nine captains, dated December 27, 1983, stating: "We, the undersigned, Captains of the Omaha Police Division, wish to be removed from the Bargaining Unit, Omaha Police Union, Local 101." On January 6, 1984, the Union President wrote the City Labor Relations Director:

"I am acknowledging of your letter dated December 23, 1983 asking that the rank of captain no longer be represented by the Omaha Police Union Local 101. As you are aware, this letter was not received until it was handed to me by you on the 27th of December, 1983.

"I would like to state at this time the Union's position. Your request that this be a part of '84 negotiations would violate our procedural agreement, Article 14. Furthermore, our information leads that the City of Omaha has been actively involved in soliciting the captains out of the unit. The City has made an effort in '83 negotiations, which I refer to at this time as Order -33-83 - Final Offer From the City, item II states, 'the Captains and Lieutenants will be approached up front by management for the purpose of discussing with them the possibility of the Captains and Lieutenants forming their own bargaining unit.'

"In accordance with the Nebraska Supreme Court, it violates the principle of the largest bargaining unit which is recognized by the Court. The Captains are part of the unit and there are no grounds for their removal."

The City filed its Petition in this matter on January 24, 1984. The parties have executed a 1984 Agreement which continues to include captains in the bargaining unit. The determinations herein will pertain to future negotiations and future contract years.

The responsibility of the Commission of Industrial Relations in this matter is to carry out the provisions of Section 48-816(3). The enactment of that statute reflects a strong policy in favor of a single police department bargaining unit composed of all police officers holding positions or classifications subordinate to the chief of the police department and his or her immediate assistant or assistants holding authority subordinate only to the chief. That policy became law as an exception to the general rules for determining appropriate bargaining units under the public employment bargaining statutes after very extensive legislative consideration. The arguments now presented by the City of Omaha against including high ranking officers in the police officers' bargaining unit were advanced by the City of Omaha and others during the 1972 Nebraska legislative consideration of L.B. 1402. While nineteen Senators voted against L.B. 1402, a constitutional majority of the Legislature voted in favor of the Bill and it has been the State's law and policy since 1972.

The Omaha Police Division has operated under the public employment bargaining law since 1972 by including captains in the police officers' bargaining unit. Although there has been some change in duties as shown in the evidence, and the number of captains has been both more and less than the present staffing at different times, the underlying situation has neither changed significantly nor suffered significantly through this arrangement.

The crux of this matter is a clash between the differing philosophies of Chief Wadman (and the City of Omaha) and the Nebraska Legislature in enacting Section 48-816(3). Chief Wadman forthrightly testified as to his strong convictions in favor of a paramilitary administration and emphasized that he held these convictions since he was recruited for the position. He stated further that removal of the captains from the bargaining unit became his first priority. He stressed that perquisites of rank are an important aspect of a strongly disciplined paramilitary organization.

The Nebraska Legislature, on the other hand, has adopted another management philosophy based upon collegiality, as reflected in the Local Union No. 647 Opinion quoted above ("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 legislative record of the enactment of Section 48-816(3) by L.B. 1402 in 1972 is appended hereto. The 1984 Nebraska Legislature has recently amended Section

48-816 without substantive change in the provisions of Section 48-816(3). See L.B. 832 (1984).

The evidence as to the present and proposed operation of the Omaha Police Division is not sufficient to change the statutory presumption of Section 48-816(3) and the collective bargaining relationships which have existed for a number of years. The evidence also shows that the captains have recently been subjected to substantial direct and indirect pressures to withdraw from the bargaining unit through the continuous course of Chief Wadman's and the City's conduct. They have been told very clearly that "rank has its privileges" and that they are entitled to perquisites of office, such as indoor parking places, to give them an added sense of commitment and an additional incentive to carry out discipline (as reflected in Chief Wadman's testimony set out above.).

The evidence shows several instances in which the captains have been dissatisfied with activities of the Union as their bargaining representative. Further, the City contends that the Union may not have represented the interests of the captains as vigorously as it might have done on some issues, such as additional educational benefits issues. It is inherent in the concept of an exclusive bargaining agent relationship, however, that not every action of the exclusive representative will benefit all members of the bargaining unit equally. There is no evidence that the Union has not fully carried out its responsibilities for fair representation of all the membership of the bargaining unit.

In the final analysis, it is the statutory language of Section 48-816(3) and its underlying legislative policy which is controlling. Based upon the evidence presented, we conclude that the bargaining unit which has been in existence for a number of years should not be changed by the Commission.

It is, therefore, Ordered that the Prayer of the City's Petition herein be denied.

All Judges assigned to the Panel in this matter join in the entry of this Findings and Order.

Filed July 16, 1984.

NOTE: APPENDICES 1 through 4 containing the legislative history of L.B. 1402 have not been printed but are available from the Commission upon request.

5The evidence shows that the captains and lieutenants have been a part of the bargaining unit for many years and that they desire to remain a part of this bargaining unit. In the case of City of Grand Island v. AFSCME, 186 Neb. 711,185 N.W. 2d 860, the Nebraska Supreme Court determined that this was a significant factor in unit determination.

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