8 CIR 307 (1986)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

FRATERNAL ORDER OF POLICE | CASE NO. 629
LODGE #16; ELMER GAU; ALICE | REPRESENTATION DOC. NO. 201
ISHAM; DUANE JOSLYN; ROBERT |
SHEPPARD; and JOHN ZAVADIL, |
|
Plaintiff, |
|
v. | OPINION AND ORDER
|
PLATTE COUNTY, |
|
Defendant. |

KRATZ, J:

On March 18, 1986, Plaintiff filed a "Petition for Amendment of Certified Unit". Said Petition requests that the bargaining unit for the Platte County Sheriff's Office include the Corrections Director, the Head Matron, and the Corporals. As grounds for this request, Plaintiff refers us to Section 48-816(3), R.R.S. 1943, which provides that law enforcement officers who are "subordinate to the chief of the department and his or her 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."

Defendant filed its Answer on March 26, 1986, and a Motion to Dismiss on April 4, 1986. Both the Answer and the Motion contend (1) that Section 48-816(3) applies only to municipal corporations and, therefore, has no application to the Platte County Sheriff's Office, and (2) the Petition does not allege any newly discovered evidence which would justify modifying the bargaining unit designation previously determined by the Commission of Industrial Relations (Commission). Briefs were filed by both parties and the matter was orally argued on April 14, 1986, before Judge Dean G. Kratz.

In 1982, this Commission considered the matter of the appropriate collective bargaining unit for the employees of the Platte County Sheriff's Office and held as follows:

Based on this re-examination of the record we find the sergeant, corporal, and head jailer responsibly direct other employees and should be classified as supervisory personnel and excluded from the employee bargaining unit.1

The current Corrections Director and Head Matron occupy the same position today as was occupied by the Head Jailer in 1982.2 There is no evidence that the duties and responsibilities of the Corrections Director, Head Matron and Corporals, determined to be supervisors in 1982 and therefore excluded from the bargaining unit, have changed.

Plaintiff's request that these employees now be included in the unit is based solely on Section 48-816(3), which says as follows:

(3)(a) Except as provided in subdivision (b) of this subsection, a supervisor shall not be included in a single bargaining unit with any other employee who is not a supervisor.

(b) All firefighters and police officers 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 or her 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 employees negotiating unit composed of firefighters and police officers holding positions or classifications subordinate to the chief of the Fire Department or Police Department and his or her immediate assistant or assistants holding authority subordinate only to the chief when such negotiating unit is designated or elected by employees in the unit. (emphasis supplied)

Platte County is not a municipal corporation, but it is a public employer. Plaintiff argues that the second sentence of Section 48-816(3)(b), commencing with the words "public employers", makes the police and fire department employee community of interest presumption applicable to all public employers, including the Platte County Sheriff's Office, and not just to municipal corporations.

While there does appear to be some inconsistency between the first and second sentence of 48-816(3)(b), we do not think the legislature intended that this statute, enacted in 1972 as LB 1042, have the broad application suggested by the Plaintiff. The legislative history of LB 1402 illustrates that it was enacted because the legislators didn't like the Supreme Court's application of the existing law to supervisors in the employee bargaining unit of a municipal fire department.3

The statement of purpose of LB 1402 refers to this Supreme Court ruling and then says, "this may be a good rule for private industry and even for certain public employees, but it is not a good rule with regard to maintaining a cohesive and unified fire department."4 The transcript of the testimony presented at the committee hearing and on the legislative floor regarding LB 1402 is replete with references to the Grand Island case, including a comment by Senator Orme, introducer of the bill, that it is "my...answer to the Supreme Court." This transcript also contains constant and consistent references to "cities" and "municipalities", including the following comment during the floor debate by Senator Holmquist: "there are at least 12 municipalities in the state of Nebraska who are affected by this bill."

We conclude, therefore, that Section 48-816(3) applies only to firefighters and police officers of municipal corporations and does not apply to the employees of the Platte County Sheriff's Office. Consequently, there is no presumption of a community of interest between the Corrections Director, Head Matron, three corporals, and the other employees within the bargaining unit. Without that presumption, Plaintiff's attempt to include these employees in the bargaining unit, when they have been previously excluded as supervisors, must fail.

In 1982, after an evidentiary hearing, this Commission determined, inter alia , that corporals and the Head Jailer were supervisory employees. Nothing has changed, except that the duties and responsibilities of the Head Jailer have now been assigned to the Corrections Director and the Head Matron. In 1982, we found that the people who occupied these positions responsibly directed other employees and were therefore supervisors. There is no evidence that they do anything other than that today. We must conclude, therefore, that they (1) still responsibly direct other employees, (2) are still supervisory employees, (3) are not subject to a presumption of community of interest with the other employees in the unit, and (4) cannot legally be included in the bargaining unit for the employees of the Platte County Sheriff's Office.

The Motion to Dismiss, therefore, is hereby granted and it is SO ORDERED.

Entered April 24, 1986.

1 F.O.P. v. Platte County , 6 C.I.R. 286 (1982).

2 This change in job title was described by the attorney for the Defendant at the hearing on the Motion to Dismiss. It was not disputed by the attorney for the Plaintiff.

3 City of Grand Island v. AFSCME , 106 Neb. 711, 185 N.W.2d 860 (1971), where the court applied the National Labor Relations Act definition of supervisors to the Grand Island fire department and excluded the captains and lieutenants from the bargaining unit.

4 While the original bill applied only to fire departments, the legislature's Labor Committee amended it to also include the police department.

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