| FRATERNAL ORDER OF POLICE | | | CASE NO. 635 |
| LODGE #23) | | | REPRESENTATION DOC NO. 208 |
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| Petitioner, | | | |
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| v | | | FINDINGS AND ORDER |
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| CITY OF HOLDREGE, and | | | |
| HOLDREGE POLICE DEPARTMENT | | | |
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| Respondent. | | |
Appearances:
For the Plaintiff: Bruce G. Mason
Ross & Mason, P.C.
8420 West Dodge Road
Omaha, Nebraska 68114
For the Respondent: Jerry Pigsley
Nelson & Harding
1200 "N" Street, 500 The Atrium
P.O. Box 82028
Lincoln, Nebraska 68501-2028
Before: Judges Mullin, Cullan and Orr
MULLIN, J:
NATURE OF PROCEEDINGS
The Petitioner in this matter requests that it be certified as the collective bargaining representative for "all the employees who are in a position or classification subordinate to the Holdrege Chief of Police." The parties have stipulated to Police Officer and Dispatcher I as being properly included in the bargaining unit. It has also been stipulated that Sergeant, Dispatcher II and Secretary to the Chief are properly excluded from the bargaining unit. The trial in this matter was conducted by deposition in lieu of live testimony before the Commission. The issues are whether or not Holdrege's Police Service Officer and the part-time Dispatcher I should 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. The statutory language of Section 48 816(3) was enacted by L.B. 1402 in 1972 and reads as follows:
(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 employee's 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.
The Nebraska Supreme Court interpreted Section 48-816(3) in Local Union No. 647, International Association of Firefighters v. City of Grand Island , 196 Nebr. 693, 244 N.W. 2d 515 (1976). The Court noted the close knit relationship firefighters and police officers have regardless of their rank in the department. The only time the relationship should be changed is when it is essential to the interest of the employer. The Court held:
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.
196 Neb. at 695.
The Commission has not taken police officers out of the bargaining unit unless they clearly have supervisory functions that will rebut the statutory presumption of community interest. Most firefighters and police officers do exercise some degree of supervisory authority during their course of duty. Thus, the Commission must determine the amount or degree of supervisory authority the police officer or firefighter has and how it affects the community of interest inherent in their employment. See, City of Omaha v. Omaha Police Union Local No. 101 , 5 CIR 103 (1981); Fraternal Order of Police, Lodge No. 11 v. City of Seward , Nebraska, 7 CIR 74 (1983); City of North Platte, Nebraska v. North Platte Police Officers Union, International Brotherhood of Police Officers, Local 582 , 7 CIR 122 (1983); City of Omaha v. Omaha Police Union, Local 101 , 7 CIR 248 (1984).
PART-TIME DISPATCHER I
The Nebraska Supreme Court has held that in attempting to determine an appropriate bargaining unit, the mutuality of wages, hours and working conditions, duties and skills of employees, extent of union organization, desires of the employees, undue fragmentation of units, established polices and the statutory mandate are all to be considered. These factors are not the only ones to be considered and do not have to be given equal weight. Sheldon Station Employees Ass'n v. Nebraska Public Power District , 202 Neb. 391, 275 N.W. 2d 816 (1979).
The Commission has expanded upon the guidelines set by the Court when determining whether a part-time employee should be in a bargaining unit. Not only does the Commission use the standards of mutuality of wages, duties, working conditions and skills but also whether or not the part-time employees work year around and receive fringe benefits. See, Sidney Ass'n of Police Employees, Int'l Brotherhood of Police Officers v. City of Sidney , 4 CIR 98 (1979); Columbus Firefighters Ass'n v. City of Columbus , 4 CIR 103 (1979); Nebr. State Council Local 32 v. City of Blair , 4 CIR 210 (1980).
The evidence and testimony shows that the part-time Dispatcher I works year around and has the same working conditions, skills and duties as a full-time Dispatcher I. These factors establish that a strong community of interest exists between the Dispatcher I and his fellow employees. Although he receives no fringe benefits, cost of living increases or merit increases, his job is essentially the same as his full-time counterparts. The amount of compensation received is the only difference between the part-time Dispatcher I and the full-time Dispatcher I. This factor alone is not enough to rebut the statutory presumption of Section 48-816(3). Based on the evidence presented, we find that the part-time Dispatcher I is properly included in the bargaining unit with his fellow full-time employees.
POLICE SERVICE OFFICER
The Exhibit which shows the recent reorganization of the Holdrege Police Department indicates that the Police Service Officer reports directly to the Chief. However, it should be noted that the organization plan set forth in Exhibit No. 9 was not submitted to the Holdrege City Council until April 28, 1986, almost a month after the F.O.P. filed its petition for representation with the Commission. The implementation date of this new plan is not clear from the evidence presented in the testimony.
Furthermore, testimony from both Officer Miller and Chief Jackson indicated that neither party was exactly sure how the reorganization plan had, or would change the prior operating procedure of the department. On a practical basis, Officer Miller testified that she would hesitate to direct another officer and would feel the need to follow the order of a sergeant under the new organization plan.
The testimony shows that the Police Service Officer has all the powers of any other Holdrege police officer. Her specific job assignment is to run the non-moving traffic violations bureau, sexual assault investigation, child abuse investigation, coordinate the crime stoppers and participate in community training programs. The duties the Police Service Officer performs have been specifically assigned to her. She does not supervise other police officers on a daily basis. During the investigation of child abuse and sexual assault cases she has supervised other police officers. However, the job description of the Holdrege Police Service Officer does not give specific authority to direct other police officers. Furthermore, the Police Service Officer does not designate specific job duties or help in the planning of policy for specific job duties.
The evidence does not indicate that the Police Service Officer's duties in any way affect the community of interest inherent in the police officers' nature of work. The Police Service Officer does not exercise ultimate authority over the fate of any other police officer in the bargaining unit. Therefore, the Commission holds that the position of Police Service Officer is appropriately in the bargaining unit.
We therefore find that a single negotiating unit including the positions of Police Officer, Dispatcher I, part-time Dispatcher I and Police Service Officer is the most appropriate bargaining unit for the Holdrege City Police Department.
IT IS THEREFORE ORDERED:
1. The appropriate bargaining unit is all employees of the City of Holdrege Police Department subordinate to the Chief of Police, excluding the positions of Sergeant, Dispatcher II and Secretary to the Chief.
2. A secret ballot election shall be conducted within a reasonable time from the date of this order within the bargaining unit ordered above.
Entered August 29, 1986.
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