7 CIR 74 (1983)


Petitioner, |
Defendant. |


For the Petitioner: Dennis M. Connolly

335 American National Building

8990 West Dodge Road

Omaha, Nebraska

For the Defendant: Kelley Baker

Nelson & Harding

500 The Atrium

1200 N Street

Lincoln, Nebraska

Before: Judges Davis, Berkheimer and Orr.


This matter came on for hearing on Petitioner's Petition requesting the Commission conduct a representation election pursuant to Section 48-838, and, if successful in such election, certification as the exclusive bargaining representative of employees designated in a unit found appropriate in a prior determination by the Commission.

The parties jointly stipulated:

"that there are two issues being presented to the Court, and that each of us are waiving all other issues or burdens of proof. The first issue is that our dispute relates to the definition of who should be in the unit, or if there is a unit, or what the unit is. We have no agreements as to the definition of the bargaining unit. After determination of the bargaining unit, Mr. Baker contends that there was activities by a supervisor which would taint the petition; that is, the second issue is whether after determining the bargaining unit whether it was tainted by a supervisor."

1. Bargaining Unit Determination.

The Petitioner put into evidence Exhibit 2 which includes: 1)

Stipulation and Joint Motion for Election, 2) Order, and 3) Certification Order filed in Commission Case No. 226 involving the Seward Law Enforcement Association, Plaintiff, and the City of Seward, Defendant. The Petitioner contends that "Exhibit 2 has a valid binding order at this time defining the current bargaining unit, and that there's no request in compliance with [Commission] Rule 4F in the answer of defendant to modify, change or otherwise alter that order." [16:17-22]

The Defendant argued that:

"the police unit which was formed as described in Exhibit 2, the Seward Law Enforcement Association, is defunct.

"Exhibit 2 was established by stipulation of the parties. There was no factual determination as to the appropriateness of the unit, the exhibit was merely agreed upon by counsel at the time." [50: 4-11]

The Commission in an Order [Exhibit 2] filed September 29, 1977, in Seward Law Enforcement Association v. City of Seward, Case No. 226, approved a stipulated bargaining unit, which included: "All employees of the Police Department including all police officers, dispatchers and communication personnel with the exception of the Chief of Police." The Commission in the same case, entered an Order [Exhibit 31 on December 13, 1977, certifying the Seward Law Enforcement Association as the exclusive collective bargaining agent for the above described group of employees.

In Exhibit 1 [Record of the hearing in Case No. 509] Sergeant Chalmers of the Seward Police Department testified that he helped organize the Seward Law Enforcement Association and that it went out of existence in September 1978. Sergeant Chalmers also testified that since the disbanding of the Seward Law Enforcement Association another employee group was organized in November 1982 called the Fraternal Order of Police, Lodge 11. That group is now seeking Commission certification as exclusive bargaining agent for the bargaining unit found appropriate in Case No. 226.

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 pertinent 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 Nebraska 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."

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 l."

The Commission in determining the appropriate unit for bargaining shall consider as one of a number of factors the composition of the prior bargaining unit represented by a different bargaining agent in 1977 and 1978. The Commission will also take into consideration that in 1978 the certified union was dissolved. In addition, the Commission will consider how the reorganization of the department since the prior certification has changed job duties and responsibilities of the personnel employed by the Defendant.

The Petitioner argued at the hearing that the Defendant has made no request pursuant to Commission Rule 4F to modify, change or otherwise alter the bargaining unit found appropriate in a previous order. The Commission finds no merit to that claim. Rule 4F only comes into effect when an incumbent union or employer seeks to resolve some ambiguity or dispute about inclusion of employees in an existing bargaining unit. (Emphasis supplied.) In the matter at hand there is no existing bargaining unit. The Defendant has not recognized the Fraternal Order of Police, Lodge 11, as a collective bargaining agent for said employees. Furthermore, Defendant need not recognize the prior certified bargaining agent since it dissolved. See Brooks v. N.L.R.B., 348 U.S. 96 (1954).

The Defendant argues that the inclusion of the Sergeants, Officer II, and Chief Dispatcher Clerk in the bargaining unit is inappropriate because they all perform supervisory duties.

In City of Grand Island v. AFSCME, 186 Neb. 711, 716,185 N.W.2d 860, 864 (1971), the Nebraska 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 the 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 the record the captains and lieutenants should be classified as supervisory personnel and excluded from the employee bargaining unit of the fire division."

However, in Local Union No. 647 v. City of Grand Island, 196 Neb. 693, 244 N.W.2d 515 (1976), the Nebraska Supreme Court would not have excluded them from the bargaining unit even though they were supervisors. The Supreme Court stated:

"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.... 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 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."

196 Neb. at 694-695.

In the Seward Police Department there is a Chief, two sergeants, one Officer II, and four Officer I. In addition, to the officers, there is a Chief Dispatcher Cerk and three full-time dispatchers and two part-time dispatchers.

The two Sergeants act as shift commanders supervising up to four officers that work 4 p.m. to midnight and midnight to 8 a.m. shifts. The officers on a shift are under the direct control of the shift commander. The shift commander can assign work to officers on their shift as well as recommend disciplinary action. As shift commander the Sergeant reports directly to the Chief. One of the Sergeants is second in command and in the absence of the Chief serves as acting chief.

The Officer II, according to the Chief, oftentimes works by himself on a shift, but when the Sergeants are off-duty assumes their position as shift commander over an Officer I working a shift. When the Officer II acts as shift commander he reports directly to the Chief.

The Chief Dispatcher Clerk has three full-time dispatchers and two part-time dispatchers reporting to her. She has authority to assign their duty shifts and to recommend disciplinary action against them. She reports directly to the Chief.

Based on the record we find that the positions of Sergeant and Chief Dispatcher Clerk are subordinate only to the Chief and responsibly direct other employees so as to classify them as supervisors. The Commission, therefore, excludes these two job classes from the bargaining unit. However, the Officer II position should be included in the bargaining unit even though we find it to be at times a supervisory position, since Section 48-816(3) permits policemen who are "subordinate to the chief of the department and immediate assistant or assistants [Sergeants] holding authority subordinate only to the chief' to be included in a bargaining unit with subordinate employees.

2. Supervisor's Pro-Union Solicitation.

The other issue before the Commission is whether the pro-union activities of Sergeant Chalmers tainted the showing of interest necessary for a certification election.

In reaching our decision we find that there are decisions in the private sector on this issue. The Nebraska Supreme Court in City of Grand Island v. AFSCME, 186 Neb. 711,185 N.W.2d 860 (1971), found that decisions under the National Labor Relations Act are helpful, but are not controlling on the Commission's determinations.

The National Labor Relations Board in Stevenson Equipment Co., 174 N.L.R.B. 865, 866 (1969), found pro-union activity by supervisors to have the following objectionable effects:

"If supervisors actively encourage employees to vote for the Union, and the employers take no known stance to the contrary, the supervisory conduct might well imply to the employees that the employer favors the Union.


"The other conceivable effect of such supervisory activity is found in the implication of the continuing relationship between the supervisors and the employees."

In N.L.R.B. v. Wehrenberg Theaters, Inc., 690 F. 2d 159, 162 (8th Cir. 1982), the Eighth Circuit recently applied the following test to determine whether union authorization cards signed by employees were invalid because of a supervisor's involvement in seeking union representation:

"Supervisory support for a union will invalidate the union's majority only when the supervisor's activities (1) cause the employees to believe that the supervisors are acting on behalf of the employer and that the employer favors the union, or (2) lead the employees to support the union because they fear future retaliation by the supervisors."

See e.g., Fall River Savings Bank v. N.L.R.B., 649 F.2d 50,56 (1st Cir. 1981); Catholic Medical Center of Brooklyn and Queens, Inc. v. N.L.R.B., 620 F.2d 20, 22 (2nd Cir. 1980).

Sergeant Chalmers admitted circulating a sign-up sheet for Fraternal Order of Police, Lodge 11 and being elected as president of the organization. He also testified that he had contacted three persons in the department that had decided to drop out of the union. One of the officers in the department testified that Sergeant Chalmers, in his capacity as union president, suggested he take notes about what the chief said or any changes he perceived as changes in employment.

The Commission finds that Sergeant Chalmer's pro-union activities were not in any way on behalf of his employer and that he did not cause any employees to believe that he was acting on behalf of his employer or that his employer favored the Union. There is no evidence of any threats, express or implied, that would support a finding of coercion. Compare Turner's Express v. N.L.R.B., 456 F.2d 289 (4th Cir. 1972) (supervisors warned employees that "things were going to get tough if the Union lost, and they would start 'paying for it' after the election"). No employee testified that he feared retaliation from Chalmers. There is also no evidence to indicate that the employer favored the union nor did any of the employees testify that they thought Sergeant Chalmers was acting on behalf of the employer. Indeed, it can be inferred from the testimony that an opposite conclusion would have been reached by the employees. Accordingly, the Commission finds that Sergeant Chalmer's pro-union activities did not invalidate the union's petition.


1. That the Petitioner has made a sufficient showing of interest to entitle it to an election, as stated in the Clerk's Report to the Commission filed March 8,1983.

2. That the Commission has determined the appropriate bargaining unit to be:

All employees of the Seward Police Department, excluding the Chief, Sergeants, and Chief Dispatcher Clerk.

3. That an election within the above determined unit shall be held as soon as possible. Judge Harvey D. Davis is appointed as the Commission's Representative for such election. Jerry L. Pigsley is appointed hearing examiner to determine initially all questions arising during the course of the election. The election shall be under the immediate supervision of the Clerk of the Commission. The parties shall confer with the Clerk to agree upon or have determined all questions concerning the election not provided for in Rule 9.

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

Filed June 9, 1983