8 CIR 1 (1984). Affirmed, 222 Neb. 550, 385 N.W.2d 443 (1986).


LOCAL NO. 244, |
Petitioner, |
Respondent. |


For IBEW, Local No. 244: David D. Weinberg

Weinberg & Weinberg, P.C.

8901 Indian Hills Drive, Suite 1

Omaha, Nebraska 68114

For Lincoln Electric Systems: Douglas Curry & J. Russell Derr Erickson & Sederstrom, P.C.

Suite 400, Cornhusker Plaza

301 South 13th Street

Lincoln, Nebraska 68508

Before: Judges Kratz, Gradwohl, Mullin.


The petitioner in this matter requests that it be recognized by the respondent as the collective bargaining representative for "all crew foremen/leaders employed in the operations department" of the Lincoln Electric Systems. The parties have stipulated that the crew foremen and crew leaders are supervisors and exercise supervisory functions.

The petitioning supervisors were formerly members of another bargaining unit, represented by Local #1536, the same union that represents the employees that they supervise. Their status in that unit was challenged by the respondent on the ground that a collective bargaining unit could not legally include both supervisory and non-supervisory employees. That issue ultimately reached the Nebraska Supreme Court where the court held that Local #1536, which represented rank and file employees, could not also represent the supervisors of those employees. IBEW, Local #1536 v. Lincoln Electric System , 215 Neb. 840, 341 N.W. 2d 340 (1983).

After the Supreme Court made this determination, some of the rejected supervisory employees returned to the International Brotherhood of Electrical Workers (IBEW) and asked for further help. The IBEW, through Mr. Ken Sawyer, district representative,then contacted representatives of another local of the IBEW, Local #244, and asked if they would be willing to represent the supervisory employees of the respondent. Local #244 agreed.1 However, in order for it to represent these supervisory employees, the bylaws had to be changed and the memberships had to be transferred from one IBEW LOCAL (#1536) to another (#244). Both of these transactions needed to be approved by the International Union. When these changes were made and approved, Local #244 became the bargaining representative for the supervisory employees and Sawyer again requested that respondent recognize this supervisory bargaining unit. When recognition was refused, this petition was filed.

There are several separate IBEW locals in Nebraska and each is a single employer unit. Local #763 represents Omaha Public Power District employees, Local #1536 represents Lincoln Electric System employees, Local #1521 represents Metropolitan Utilities District of Omaha employees, and Local #244 heretofore represented only the employees of Minnegasco. None of these single employer locals maintain a paid, full-time business representative. They are operated by lay union people who do the bargaining, arbitrating, lobbying, and processing of grievances.

Sawyer testified that he is paid by the IBEW; that he supervises various locals in the midwest, including those in the state of Nebraska; that he is available to the local unions on call; and that he normally assists in collective bargaining, lobbying, arbitration, and the processing of grievances. He says he is available for these services when called upon and one of his functions is to assist in the bargaining strategy of all local unions within his region. Sawyer "occasionally" participates in Local #244's negotiations with Minnegasco and he assisted, as did all of the Nebraska IBEW locals, in the lobbying effort for LB 829, a bill which would benefit some of the locals (those with employees of public employers), but not others.

All of the Nebraska locals are chartered by the IBEW, governed by the constitution of the IBEW, participate in the international convention of the IBEW through their separately elected delegates, belong to the Nebraska State Council of Utility Workers and the Electrical Workers Council, and the authorization cards in this case, attached to the Petition, show only that the employees agrees to be represented by the IBEW.2 The IBEW is available to provide research information on collective bargaining and it receives 50% of the dues collected by the local chapters. These dues are used, inter alia , to pay the salaries of the union representatives, including Mr. Sawyer. Juris Tontegode, a leader in the transfer of this supervisory unit to Local #244, is a former president of Local #1536.

The first issue presented in this case is whether the supervisory unit which requests recognition from the respondent is an appropriate unit for collective bargaining. Under all of the criteria established by the Commission of Industrial Relations and the Nebraska Supreme court, it is clear that this is an appropriate collective bargaining unit and we so find. See Civilian Management, Professional & Technical Employees Council of the City of Omaha , Inc. v. The City of Omaha, Case #463, 6 CIR 187 (1982); SheldonStation Employees Association v. Nebraska Public Power District , 202 Neb. 391, 275 N.W. 2d 816 (1979); and State Colleges Education Association v. Board of Trustees , 205 Neb. 107, 286 N.W. 2d 433 (1979).

The second issue is whether the IBEW's control and influence over the supervisory employees, represented by Local #244, and the rank and file employees they supervise, represented by Local #1536, creates the possibility of a conflict of interest between the two locals, and prevents them from acting independently, in their collective bargaining relationship with the same employer.

The Nebraska Supreme Court has made very clear that the Nebraska statutes will not allow supervisory or managerial personnel in the same bargaining unit with rank and file employees. In City of Grand Island v. American Federation of S. C. & M. Employees , 186 Neb. 711, 185 N.W. 2d 860, (1971), the court said: "Individuals who are authorized to responsibly direct other individuals are supervisory employees and should be excluded from an employee bargaining unit." Id . at 711, 185 N.W. 2d at 862.

The case of Nebraska Association of Public Employees v. Nebraska Game & Parks Commission , 3 CIR 83, Affirmed, 197 Neb. 178, 247 N.W. 2d 449, closely resembles the instant case. The issue was whether a labor organization which represented a unit of rank and file employees could also represent a unit composed of the supervisors of those rank and file employees. This Commission (then called Court of Industrial Relations) said that supervisory units are permitted "if such units are sufficiently separate from the rank and file units of persons who are to be supervised." 6 CIR at 88. We held that the petitioner in this case was not sufficiently separate and in order to "avoid any possibility of a conflict of interest", we dismissed the petition. 6 CIR at 89.

In affirming this Commission opinion, the Supreme Court said as follows:

"To permit supervisory personnel to retain the same bargaining agent as the employees' union would be tantamount to permitting them to enter the same bargaining unit and such agent could, and doubtless would, manipulate its efforts jointly in behalf of each. We hold that supervisory or managerial personnel may not enter into a bargaining unit with rank and file employees and may not retain the same bargaining agent."

Nebraska Association of Public Employees v. Nebraska Game & Parks Commission , 197 Neb. 178, 180, 247 N.W. 2d 449, 450 (1976).

The problem with having supervisors and rank and file employees in the same unit, according to the Supreme Court, would be that "department heads and officers would be free to enter into a bargaining unit with employees under their supervision and subject to be discharged by them. There would be no one left to negotiate in behalf of the state. Chaos would result and the public policy declared in Section 48-802, R.R.S., 1943, would be completely nullified."

The case of Lincoln City Employees Union, National Association of Governmental Employees v. City of Lincoln , 210 Neb. 751, 317N.W. 2d 63 (1982), involves a closely related issue, whether guards and non-guards can be represented by the same union. The city contended that the Lincoln City Employees Union (LCEU) and the Lincoln Police Union are directly or indirectly affiliated with each other (they both belong to the National Association of Governmental Employees (NAGE)) and that "bargaining units may not include both guard and non-guard employees, nor may unions admitting guards into membership also represent for purposes of collective bargaining non-guard employees." Id . at 755, 317 N.W. 2d at 66. The evidence illustrated that the police union and NAGE were separate,independent and autonomous. "The separateness of the two local unions" was indicated by the fact, inter alia , that NAGE did not consult with, or render advice to, the police union with regard to collective bargaining negotiations, nor did it participate in any other way in the negotiations.

In affirming the decision of the Commission of Industrial Relations, the court said "the record does not reflect sufficient evidence that NAGE is controlling either local or that the locals were not acting independently", Id . at 758, 317 at 67, and it concluded as follows:

"The mere fact that each local union can be traced back to a common international union will not be enough to show that the locals are affiliated with each other. There must be a positive showing that the international has authority and power to exercise control over both locals and that it is actually exercising that control. Here, there is evidence that the locals are controlling their own activities. The International Union was used only in the formative stages of the locals. Also, no civilian employees are allowed to become members of either the IBPO or the Lincoln Police Union."

Id .

One test to determine whether a guard union is affiliated indirectly with a non-guard union is "the extent and duration of (the guard unions) dependence upon (the non-guard union) or vice versa, indicates a lack of freedom and independence in formulating its own policies and deciding its own course of action." Id . A non-guard union's assistance to a guard union is permitted during the former's formative stages, but "where the assistance rendered continues beyond the formative stages, the board has found an indirect affiliation between guard and non-guard organizations." Id .

We are of the opinion that IBEW Locals #244 and #1536 are sufficiently affiliated with each other to create a possible conflict of interest in their collective bargaining relationship with the same employer. Both belong to the same international union. Representatives of that international union have participated in the activities of both local unions in the past and will likely continue to do so in the future. Both local unions, without a paid staff or full-time business agent, will likely need help from the international union in collective bargaining.

International representative Sawyer participates in the Minnegasco negotiations on behalf of the rank and file employee members of Local #244 and it would seem natural, therefore, for him to also assist in the negotiations for the supervisory employees of Local #244. It is conceivable that Sawyer, or some other international representative, could be rendering collective bargaining advice to the supervisors (Local #244) and the employees they supervise (Local #1536) at exactly the same time. He could, in effect, serve as the business representative for both locals in their separate negotiations with the respondent.

The members of these two locals join with each other at IBEW conventions and at the meetings of the Nebraska State Council of Utility Workers, they work together on legislative proposals, and 50% of their dues are used for the same purpose. They receive instructions and advice in the operation of their unions from the same source. The leader in the successful effort to affiliate with Local #244 is the former president of Local #1536. The two IBEW locals have many common bonds and are so closely affiliated that one union could very likely influence the actions and decisions of the other, and this is exactly what the Supreme Court ruling in the NAPE case seeks to avoid.

These two local unions do not, and perhaps cannot, act independently of each other because of the potential control over both of them by the IBEW. Because of this close relationship and potential control, we are not sure that it is possible to have rank and file employees and their supervisors affiliated with the same international union and still meet the "sufficiently separate" test delineated by this Commission in the NAPE case. We find that the IBEW's potential and actual control over the supervisory employees, represented by Local #244, and the employees they supervise, represented by Local #1536, creates the possibility of a conflict of interest between the two locals, and prevents them from acting independently, in their collective bargaining relationship with the same employer.

The petition is dismissed.

Entered December 20, 1984.

John M. Gradwohl, Judge, Concurring:

I join in (1) the Order dismissing the petition, (2) the Findings that the proposed supervisory unit is an appropriate unit for collective bargaining under the statutes, and (3) the Findings that there has been a positive evidentiary showing that IBEW has authority and power to exercise control over both local unions and that it is actually exercising that control.

I disagree with the import, or, at least, the phraseology, of some of the statements concerning potential conflict of interest. The determinative rules on representation of employee and supervisor units of the same employer, as stated in both syllabus 2 and the Supreme Court's Opinion (210 Neb. at 757-758) in Lincoln City Employees Union v. City of Lincoln , are:

"Absent a sufficient showing in the record of the dependence upon one another or the lack of freedom and independence in formulating their own policies and setting their own course of action, this court will not find a direct or indirect affiliation between two local unions. The mere fact that each local union can be traced back to a common international union will not be enough to show that the locals are affiliated with each other. There must be a positive showing that the national has authority and power to exercise control over both locals and that it is actually exercising that control."

To the extent that some of the Commission's Findings and reasoning can be interpreted as being broader or different than these applicable rules, I disagree with the Commission's Findings and reasoning.

1 If Local #244 had rejected the supervisory employees, Sawyer would have asked other IBEW locals, #265, #763, and #1521 to accept these people.

2 20 of the 25 members of the unit signed the authorization cards.