9 CIR 300 (1988)


Petitioner, |
Respondent. |


For the Petitioner: Timothy W. Nelsen

104 South 12th Street

P. O. Box 98

Nebraska City, NE 68410

Richard H. Hoch

Three Professional Plaza

P.O. Box 488

Nebraska City, NE 68410

For the Respondent: Jerry L. Pigsley

Nelson & Harding

500 The Atrium

1200 N Street

P. O. Box 82028

Lincoln, NE 68501-2028

William F. Davis

City Attorney

City of Nebraska City

804 Central Avenue

Nebraska City, NE 68410

Before: Judges Kratz, Cope, and Peetz


The issue in this case is the composition of the bargaining unit for the police officers at Nebraska City. Petitioner claims the unit should include sergeants, secretary/dispatcher, and parking meter attendant, as well as the patrolmen. Respondent argues that the unit should include only the patrolmen. The Nebraska City police department is structured with the mayor as the Commissioner of Public Safety. Section 2-49 of the Code of the City of Nebraska City (Exhibit P #2) says the mayor "shall have full control of the police department and the police of the city..." Other than the mayor and chief of police, the Nebraska City Police Department has four sergeants, seven patrolmen1, one secretary/dispatcher, and one parking meter attendant.


The Respondent relies on the definition of supervisor in Section 48-801(9), R.S. Supp. 1986, as the basis for its claim that sergeants are supervisors and should therefore be excluded from the bargaining unit. Section 48-801(9) says as follows:

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 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.

The sergeants exercise little of the afore listed authority, but they do on some occasions responsibly direct the patrolmen. Under the particular circumstances of this case, however, we conclude that this very limited supervisory authority is not enough to remove the sergeants from the bargaining unit.

The controlling statute is Section 48-816(3), R.R.S. 1943, which is "an exception to the general rules for determining appropriate bargaining units under the public employment bargaining statutes." City of Omaha v. Omaha Police Union Local 101 , 7 CIR 248 (1984), affirmed 222 Neb. 197, 382 N.W. 2d 613 (1986). Section 48-816(3) says 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

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1 One of the patrolmen, Officer Kopf, has a totally different assignment from all other patrolmen and sergeants. He is the equipment officer. He takes care of the police vehicles and equipment, maintains the parking meters, and does not maintain a regular patrol shift.

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 employees' 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.

In its interpretation of the aforequoted statute, this Commission has consistently held that limited supervisory authority is not sufficient to overcome the presumption of community of interest in police or fire departments. In Fraternal Order of Police Lodge No. 15, v. City of Norfolk and Norfolk City Police Division , 8 CIR 287 (1986), we concluded that the sergeants and dispatcher II's exercised supervisory functions (i.e., assign and schedule work, direct employees in their work, adjust employee grievances, make employee evaluations, recommend discipline), but we nevertheless included them in the proposed unit because:

Given the intent of the legislature in enacting Section 48-816(3) and the previous decisions of the Commission, it is well established that 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.

In City of Omaha v. Omaha Police Union, Local No. 101 , 5 CIR 103 (1981), we included captains and lieutenants in the bargaining unit with the sergeants and patrolmen despite the fact that "the evidence shows that the captains and lieutenants do exercise supervisory functions..." In a later Omaha police case, City of Omaha v. Omaha Police Union Local No. 101 , supra, we refused to remove the captains from the bargaining unit although "under the normal rules for determining appropriate bargaining units under the Nebraska Public Employment Bargaining Statute, these captains would be 'supervisors' and not properly a part of an employee unit."

Furthermore, prior to the enactment of 48-816(3), the Nebraska Supreme Court held that captains and lieutenants were supervisory personnel and therefore could not be included in the Grand Island fire department bargaining unit with subordinate employees ( City of Grand Island v. American Federation of S. C. & M. Employees , 186 Neb. 711, 185 N.W. 2d 860), but after the enactment of 48-816(3), the Supreme Court said these same captains and lieutenants could be included in the bargaining unit. Local Union No. 647 v. City of Grand Island , 196 Neb. 693, 244 N.W. 2d 515 (1976). According to the Nebraska Supreme Court, Section 48-816(3) "bars the higher echelon of officers in these departments from entering into bargaining units but leaves the lower echelons free to do so."

Thus, the limited supervisory authority exercised by the sergeants in the instant case is clearly not sufficient to rebut the presumption that there is a community of interest between the sergeants and the patrolmen.

A more difficult question, however, is whether Section 48-816(3) prohibits the sergeants from belonging to the same bargaining unit as the patrolmen. Section 48-816(3) says that "policemen...in a position or classification subordinate to the chief of the department and his immediate assistant or assistants... shall be presumed to have a community of interest." Respondent argues that this language not only says the police officers subordinate to the chief and assistant chiefs ordinarily belong in the same bargaining unit, but it also says the sergeants, who are the immediate assistants to the chief in the instant matter, cannot be included in that unit. The statute, however, only says the immediate assistants cannot be included in the presumption that those subordinate to the immediate assistants belong in the same unit. We agree that the assistant chiefs ordinarily belong with the chief and not the patrolmen, and we have said so. Fraternal Order of Police, Lodge #11 v. City of Seward , 7 CIR 74 (1978). City of North Platte v. North Platte Police Officers, IBPO Local #582 , 7 CIR 122 (1983). We don't, however, read 48-816(3) to require this and in this particular case, the application of the community of interest guidelines require a different bargaining arrangement.

If we remove the four sergeants from the unit on the ground that they are assistants to the chief, the unit would have six sworn officers in the unit and five out of it2. This ratio is disproportionate. You shouldn't need a supervisor for every employee. Our ruling in the Omaha Police case left six people out of the unit (the chief and five deputy chiefs) and 564 in (9

captains, 30 lieutenants, 100 sergeants,

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2Because of the totally different nature of his assignment, we have excluded patrolman Kopt from this comparison, and the secretary/dispatcher and parking meter attendant are not sworn officers.

and 425 patrolmen). The NLRB has said that the relative number of employees and supervisors is one of the factors to be considered in determining supervisory status. Quick Shop Markets, Inc. , 168 NLRB 180. In U.S. Gypsum Co. , 121 NLRB 370, the Board said that five supervisors for six employees was a disproportionate number. In Metal Treating Co., 100 NLRB 656, the Board found that a superintendent and assistant superintendent were not supervisors because a contrary finding would result in a ratio of four supervisors to five employees. In Knight & Company , 93 NLRB 1193, the Board held that a lead man was not a supervisor because a contrary finding would result in a disproportionate ratio of seven supervisors to 14 employees.

The four sergeants and the six patrolmen at Nebraska City do virtually the same thing. The sergants have very little authority over the patrolmen. The patrolmen ordinarily take their orders from, and report to, the chief. The four sergeants do not exercise the same authority as is ordinarily exercised by deputy chiefs or assistant chiefs in other police departments.

There is simply very little difference in the assignments, authority, duties and responsibilities of the sergeants and patrolmen. They have a mutuality of interest in wages, hours, and working conditions (they are paid on an hourly basis & work identical hours); they have the same supervisor (the chief); they perform the same work assignments; they have the same duties and skills; they desire to be joined in the same bargaining unit; and they belong to the same union.

The sergeants and patrolmen, therefore, clearly have a community of interest which allows them to be placed in the same unit, and that is what our ruling herein provides. The Nebraska State Council of Local Unions No. 32, AFSCME v. County of Adams , 5 CIR 401 (1982). City Employees Association v. City of Lincoln , 6 CIR 331 (1982), appeal dismissed, December 12, 1983. If that seems contrary to the requirements of 48-816(3), we reiterate that it is not. At Nebraska City, there are no "immediate assistants" to the chief, such as is contemplated by Section 48-816(3). The chief has not delegated this authority to anybody. The patrolmen do not report to the sergeants, but instead, they report directly to the chief. The chief has no assistants.

In Local Union No. 647 v. City of Grand Island , supra, the Supreme Court commented about Section 48-816(3) as follows:

Our present statute appears to espouse an intermediary stance as to firemen and policemen. It recognizes the conflict of interest which can result when supervisory personnel assume labor union obligations. The statute consequently bars the higher echelon of officers in these departments from entering into bargaining units but leaves the lower echelons free to do so.

We create no conflict of interest in the Nebraska City police department by placing the sergeants and the patrolmen in the same bargaining unit. The limited differences between them, and the limited supervisory authority of the sergeants, can hardly make the sergeants "higher echelon" officers and the patrolmen "lower echelon" officers. They occupy the same echelon. One of the problems with placing supervisory personnel in the same unit with non-supervisory personnel is that it may create "divided loyalties" and therefore, "the operational efficiency of the government can suffer." In Matter of City of Omaha Police Union and Omaha Association of Firefighters , 1 CIR 32 (1971). Under the limited supervisory authority of the sergeants in the instant matter, placing them in the same bargaining unit with the patrolmen would not create divided loyalties. The sergeants are more closely aligned with the patrolmen than with the chief. They do not consider themselves supervisory employees. Their community of interest is with the patrolmen and Section 48-816(3) should not be interpreted to exclude them from that bargaining unit.

Our ruling herein with regard to the Nebraska City sergeants is not contrary to Fraternal Order of Police, Lodge No. 11 v. City of Seward , supra. In the Seward case the two sergeants who were separated from the bargaining unit were "shift commanders" and the patrolmen working on the shift with them were under their direct control. The Seward sergeants also assigned work to the patrolmen, recommended disciplinary action, and the patrolmen reported to the sergeants rather than directly to the chief.


The Secretary/Dispatcher serves in a dual capacity. She is the dispatcher for the police officers and she serves as the chief's secretary. She has performed no work for the chief, however, with regard to the confidential labor negotiations. Respondent wants her excluded from the unit on the ground she is a confidential employee. The chief says he writes one letter a week, so it is clear that her primary function is that of the dispatcher. She also does secretarial work for the other police officers. In a case very similar to this, Sidney Association of Police Employees v. City of Sidney , 4 CIR 98 (1979), this Commission held that the Secretary/Dispatcher "may belong to the unit." We also find here that the Secretary/Dispatcher may belong to the unit.


The parking meter attendant answers only to the chief of police. She receives her wages from a parking meter fund and not from the police department budget, she works a regular 8-hour day from 9:00 a.m. to 4:30 p.m., she is not a sworn officer, she has a different skill level than the police officers, she cannot serve as a patrolman, and she has not had the same training as the patrolmen. She clearly does not have a community of interest with the patrolmen and should, therefore, be excluded from the bargaining unit.

Entered March 15, 1988.