9 CIR 111 (1987)


Petitioner, |
ASSOCIATION, An Unincorporated |
Association, |
Respondent. |


For the Petitioner: Paul M. Schudel

Woods, Aitken, Smith, Greer,

Overcash & Spangler

1500 American Charter Center

206 South 13th Street

Lincoln, Nebraska 68508

Dale C. Crandall

Clinch & Crandall

455 Grand Avenue

Burwell, Nebraska 68823

For the Respondent: James A. Beltzer

Luebs, Dowding, Beltzer,

Leininger, Smith & Busick

Wheeler at First Street

P.O. Box 790

Grand Island, Nebraska 68802

Before: Judges Cope, Kratz, and Cullan



On October 31, 1986, Rodeo Telephone, Inc., (hereinafter Petitioner) commenced this action seeking to amend the January 28, 1986 certification of the Rodeo Telephone, Inc. Supervisory Employees bargaining unit (hereinafter Respondent). The Certification Order issued by the Commission of Industrial Relations found the following supervisory bargaining unit to be appropriate:

All supervisory employees of Rodeo Telephone, Inc.

Rodeo Telephone, Inc. Supervisory Employees Association v. Rodeo Telephone, Case No. 609, January 28, 1986.

The Petitioner seeks a determination in this proceeding that the positions of "Assistant Plant Superintendent" and "General Manager" at Rodeo Telephone, Inc. are not properly included within the present bargaining unit.

In December of 1985, prior to the election certifying the Rodeo Telephone, Inc. Supervisory Employees Association as the exclusive bargaining agent for the supervisory employees, the parties agreed to the composition of the bargaining unit. Both positions currently in question were included in the bargaining unit at that time.

The sole issue for determination by the Commission is the appropriateness of the certified bargaining unit. The Commission has jurisdiction over this action pursuant to Section 48-838 (R.S. Supp. 1986).


Petitioner contends that the position of Assistant Plant Superintendent should not be included in the Respondent bargaining unit. This position is currently held by Alvin Miller. Petitioner argues that Miller is not a supervisor pursuant to the statutory definition of the term provided in Section 48-801(9) (R.S. Supp., 1986) and is not properly included in the bargaining unit. Section 48-801(9) reads as follows:

Supervisor shall mean any employee having authority, in the interest of the employer, to hire, transfer, suspend, lay off, 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 a merely routine or clerical nature, but requires the use of independent judgment.

Id (emphasis added).

This statutory definition is applicable in the disjunctive. Therefore, to be classified as a supervisor an employee need only have one of the types of authority specified in the statute. Previously, in Retail and Professional Employees Union, Local 1015 v. Metropolitan Technical Community College Area , 3 CIR 467 (1978), we specifically held that:

...possession of one of the duties or responsibilities of supervisors is sufficient to classify an employee as a supervisor.

Id at 468. See, Communications Workers of America v. City of Hastings , 3 CIR 4 (1974).

We recognize that these cases were decided prior to the enactment of 48-801(9) in 1985, which codified the definition of supervisor adopted by the Supreme Court in City of Grand Island v. AFSCME, 186 Neb. 711, 185 N.W.2d 860 (1971).

However, the findings are relevant to the present case in that the definition of supervisor used by the Court in the City of Grand Island case is identical to the definition in 48-801(9) today.

Testimony elicited at trial indicated that the Assistant Plant Superintendent would, in the absence of the Plant Manager and Plant Superintendent, direct the technical staff during major interruptions of service and other problems. Although no written directive exists delegating to the Assistant Plant Superintendent the authority of the Plant Superintendent or General Manager in their absence, it is evident from the testimony that he is next in the chain of command at Rodeo Telephone Inc.

The record further indicates that the position of Assistant Plant Superintendent was created in May or June of 1984 at the request of the Board of Directors. Miller was promoted from Combination Man to this position in June of 1984. In his current capacity the Assistant Plant Superintendent performs the technical duties of a Combination Man as well as supervisory duties consistent with his job title. From the Scotia business office the Assistant Plant Superintendent supervises the work of Frank Bruha, the Combination Man assigned to that office. On occasion he also oversees the work of other Rodeo employees sent down to the Scotia office from Burwell on a temporary basis. These employees are engaged primarily in construction and maintenance work as dictated by need. Requests for installations and repair work are received in the office directly from the Rodeo subscribers, not from the Burwell office. After receiving subscribers' requests, the Assistant Plant Superintendent designates the work to be done for the day. Thereafter, depending on the specific task to be performed, he offers direction to the Combination man in the performances of his duties. The fact that Assistant Plant Superintendent may perform many of the same duties as the other Combination men is not determinative. In addition to these tasks the Assistant Plant Superintendent is responsible for the direction of the employees assigned to him on a daily basis. This factor is determinative in our finding. City of Grand Island, supra .

The case of IBEW v. Lincoln Electric System , 216 Neb. 840, 341 N.W.2d 340 (1983), involved a closely related issue, whether the position of crew foreman was supervisory and should be excluded from the employee rank and file bargaining unit. In finding the position of crew foreman supervisory the Supreme Court stated:

The fact that the foreman also perform the same or some of the same duties as other members of the crew and work alongside the other members of the crew is not determinative. The controlling consideration is that the crew foremen are authorized and required to responsibly direct the other members of the crew.

Id at 841. (emphasis added).

We conclude from the evidence in the record that the position of "Assistant Plant Superintendent" at Rodeo Telephone, Inc. is supervisory in nature and, therefore, properly included in Respondent bargaining unit.


The Petitioner also contends that the position of General Manager should be excluded from Respondent bargaining unit. This position is currently held by Jeff Anderson. Petitioner argues that Anderson is the "designated representative" of the Rodeo Telephone, Inc. Board of Directors charged with authority to manage all Rodeo Telephone, Inc. employees and therefore, is not properly included in any employee bargaining unit.

We find merit in Petitioner's argument that a manager should not be a member of an employee bargaining unit composed of employees that the manager must ultimately supervise, discipline, and if necessary, discharge. Moreover, the National Labor Relations Board has adhered to a policy of excluding all managerial employees from employee bargaining units. While NLRB decisions are not controlling on the Commission, we have often looked to the Board's decisions for guidance in determination of our cases. City of Grand Island, supra .

In NLRB v. Bell Aerospace Co. Div. of Textren Inc. , 416 US 267 (1974) the Supreme Court set forth the three types of employees recognized under Federal law: rank and file, supervisory, and managerial. Those employees found to be managerial were specifically excluded from the bargaining unit. The Court also provided the following definition of managerial employees:

"the determination of 'managerial,' like the determination of 'supervisory,' is to some extent necessarily a matter of the degree of authority exercised. We have in the past, and before the passage of the recent amendments to the act, recognized and defined as 'managerial' employees, executives who formulate and effectuate management policies by expressing and making operative decisions of their employer, and have excluded such managerial employees from bargaining units. We believe that the Act, as amended, contemplates the continuance of this practice."

Bell Aerospace , 416 US at 286. (emphasis added).

The Commission has never defined the term "managerial" nor explicitly prohibited the inclusion of such employees in bargaining units. Traditionally, employees with supervisory authority over their peers have been excluded from bargaining units based on a "conflict of interest" theory. See, Nape v. Nebraska Game and Parks Commission, 197 Neb. 178, 247 N.W.2d 449 (1977). In Civilian Management, Professional and Technical Employees Council of the City of Omaha, Inc. v. City of Omaha , 6 CIR 187 (1982), the city contested the inclusion of a number of job classifications on the basis that persons holding these positions exercised supervisory functions over other members of the bargaining unit, thereby creating a potential conflict of interest. The Commission ultimately excluded a number of supervisory positions from the unit stating:

It is inherent in a middle-level management bargaining unit that there be some hierarchy of supervisory and managerial responsibility and authority. The evidence in this case shows that there are different echelons of managers in the group under consideration. In determining the appropriate bargaining unit for persons having supervisory authority, the factor of insuring a proper functioning and operation of governmental service takes on a special significance....

From the evidence, we find that the following job classifications should be excluded from the bargaining unit because they possess such a high degree of managerial and supervisory responsibility as to constitute a potential substantial limitation of the proper function and operation of governmental services of the City of Omaha under the applicable rules set out and discussed above: City Comptroller (also excluded from participation in labor negotiations), City Attorney (also excluded for general conflict of interest and participation in labor negotiations), City Engineer (although not formally contested), Permits and Inspection Superintendent (although not formally contested), and Park and Recreation Superintendent.

Id at 201, 202.

The evidence in the record indicates that the General Manager at Rodeo Telephone, Inc. "[W]ill use responsibility to control and supervise the operation of the corporation, to direct its working forces and to determine job requirements for personnel needed." See , Petitioner's Exhibit No. 1. The General Manager also has authority, as set out in the Rodeo Revised Employment Code, to discharge, transfer, promote, demote and discipline all employees. This authority applies to those employees presently members of the Supervisory Bargaining Unit. In actuality, the position of General Manager supervises supervisory employees, as well as, rank and file employees.

Because the General Manager also acts as the liaison between the Rodeo Board of Directors and the employees, further potential for conflicts exist. The Board may require the General Manager to develop and implement policies in the future which are against the best interest of the supervisory unit. Such policy would be difficult for an Association member to implement and support. If the General Manager is allowed to remain in the supervisory unit he cannot insure complete loyalty both to his employer, Rodeo Telephone, Inc. and his bargaining unit, Rodeo Telephone, Inc. Supervisory Employees Association.

Therefore, based on the evidence presented, we find that the present supervisory bargaining unit at Rodeo telephone, Inc. should be amended to exclude the position of General Manager.


1. That the appropriate bargaining unit is all supervisory employees of Rodeo telephone, Inc. excluding the position of General Manager.

2. That this amendment shall be effective immediately.

All judges assigned to the panel in this case join in the entry of this Findings and Order.

Entered February 26, 1987.