8 CIR 287 (1986)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

FRATERNAL ORDER OF POLICE | CASE NO. 626
LODGE #15, | REPRESENTATION DOC. NO. 200
|
Petitioner, |
|
v. | FINDINGS AND ORDER
|
CITY OF NORFOLK and NORFOLK CITY |
POLICE DIVISION, |
|
Respondent. |

Appearances:

For the Plaintiff: Bruce G. Mason

Ross & Mason, P.C.

8420 West Dodge Road

Omaha, Nebraska 68114

For the Respondent: William A. Harding

Nelson & Harding

1200 "N" Street, 500 The Atrium

P.O. Box 82028

Lincoln, Nebraska 68501-2028

Before: Judges Orr, Kratz, and Cope

ORR, J:

NATURE OF PROCEEDINGS

The Petitioner in this matter request that it be recognized by the Respondent as the collective bargaining representative for "all employees of the City of Norfolk Police Department subordinate to the Chief of Police." The parties have stipulated that the positions of Police Chief and Police Captain are properly excluded from the bargaining unit. The parties further stipulated that the positions of Police Officer, Detective, Dispatcher, Community Resource Officer, Animal Control/Property Control Officer, and Secretary are included in the bargaining unit. The sole issue for determination by the Commission is whether the positions of Sergeant, Detective Sergeant, and Dispatcher II are to be included in the bargaining unit.

STATUTE

The parties agree that the statutory language of Section 48-816(3) (Cum. Supp. 1973) and its underlying legislative policy is controlling on the issue presented. However, Respondent contends that the language of Section 48-816(3) is permissive, not mandatory, and that a rebuttable presumption as to the community of interest between all police officers exists.

The statutory language of Section 48-816(3) was enacted by L.B. 1402 in 1972 and reads, in part, as follows:

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. Section 48-816 (3) (Cum. Supp. 1973). (Emphasis added)

We have recently interpreted this provision of Section 48-816(3) in City of Omaha v. Omaha Police Union, Local 101 , 7 CIR 248 (1984), aff'd 222 Neb. 197, 382 N.W.2d 613 (1986).

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.

Id at 260.

Clearly, the legislative intent of the statute was to create a strong presumption of "community of interest" between all police officers and firefighters subordinate to their respective chiefs. The statute was designed to fit the unique needs of the firefighters and police officers of this state, as well as to serve the public interest. By fostering an atmosphere which allows for unity and closeness among the members and their officers, the statute provides a work environment which "promotes efficiency and a willingness to work together." Local Union No. 647 v. City of Grand Island , 196 Neb. 693, 694, 244 N.W.2d 515 (1976). It is in the public's best interest to have such emergency personnel content and efficient within their working environs.

If however, there is sufficient evidence to rebut the legislative presumption of community of interest, the Commission will adjust the bargaining unit accordingly. In City of Omaha v. Omaha Police Union Local 101 , 5 CIR 103 (1981), the Commission found that the statutory language of Section 48-816(3) was permissive and rebuttable by evidence. However, the Respondent failed to present evidence adequate to rebutt the presumption.

This statutory language, of course is permissive and may be rebutted by petitioners evidence. Petitioner argues that the captains and lieutenants exercise sufficient supervisory and management functions to be separated...

The evidence shows that the captains and lieutenants do exercise supervisory functions, but so do the sergeants... 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.

Id at 109-110.

Although the statute recognizes the potential conflict of interest that can result when high level supervisory personnel assume labor union obligations, it does allow the lower level of officers to enter into bargaining units. The determination of whether or not an officer exercises sufficient supervisory and management functions to be separated from the patrolmen is not an easy one, as evident from the above cited case language. In almost all instances, rank and file members will exercise some degree of supervisory authority during their course of duty. This is true even where senior patrolmen have some supervision over patrolmen with less time in grade than themselves.

The parties agreed by oral stipulation at the time of trial, that this case involves a determination by the Commission of "supervisor status" under Section 48-801(a) (R.S. Supp., 1985) which reads:

(9) Supervisor shall mean any employee having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not merely routine or clerical nature, but requires the use of independent judgment.

Additionally, the parties stipulated to the following factual conclusions as to the duties of the Sergeants and Dispatcher II positions:

(1)Complete employee evaluations utilized in the promotion process.

(2)Assign and schedule work.

(3)Complete on a regular basis employee evaluations for purpose of pay increases.

(4)May or do recommend discipline and issue oral reprimand.

(5)Direct employees in their work.

(6)Adjust employee grievances.

(7)Utilize independent judgment in connection with the foregoing. (subject to applicable departmental SOP restrictions)

It was further stipulated by the parties as to the following facts:

(1)Sergeants and dispatcher II do not have the authority to hire employees.

(2)Do not have the authority to transfer employees.

(3)Do not have authority to suspend an employee for longer than 24 hours.

(4)Do not have authority to lay off an employee.

(5)Do not have authority to recall from layoff an employee.

(6)Do not have authority to promote an employee.

(7)Do not have authority to discharge an employee.

(8)Do not have authority to reward an employee.

(Oral Stipulation from T:9-11)

This Stipulation was offered by the parties for factual purposes only and not intended to stipulate as to legal conclusions.

Given the intent of the Legislature in enacting Section 48-816(3) and the previous decisions of the Commission, it is well established that a simple showing of traditional supervisory authority normally associated with a particular grade level is not sufficient to overcome the statutory presumption of community of interest. The evidence presented at trial indicates the Sergeants and Dispatcher II duties include some supervisory functions; however, the evidence does not indicate that these supervisory duties in any way effect the community of interest inherent in the police officers' nature of work. Most importantly, the positions in question do not exercise ultimate authority over the fate of their subordinates. The power to hire, fire, layoff and promote lies exclusively within the hands of upper management. Furthermore, there is no evidence of an adversary relationship existing between the Sergeants and Dispatcher II and their subordinates in the bargaining unit. The members of the proposed bargaining unit appear to share a community of interest strong enough to withstand the occasional strain caused by the supervisory functions of its officers. The supervisory functions exercised by the Sergeants and Dispatcher II positions are not enough to warrant separation from the proposed unit.

The evidence presented by the Respondent does not overcome the statutory presumption of the existence of a community of interest between the Sergeants and Dispatcher II and all their subordinate officers. It is the statutory language of Section 48-816(3) and its underlying legislative policy which is controlling. We therefore find that a single negotiating unit including the positions of Sergeant, Detective Sergeant, Dispatcher II, Police Officer, Detective, Dispatcher, Community Resource Officer, Animal Control/Property Control Officer and Secretary is the most appropriate bargaining unit for the Norfolk City Police Department. IT IS THEREFORE ORDERED:

1. The appropriate bargaining unit is all employees of the City of Norfolk Police Department subordinate to the Chief of Police, excluding the position of Police Captain.

2. A secret ballot election shall be conducted within a reasonable time from the date of this Order within the unit described above.

Entered August 14, 1986.

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