| NEBRASKA STATE PATROL, | | | CASE NO. 644 |
| | | REPRESENTATION DOC. NO. 211 | |
| Petitioner, | | | |
| | | ||
| v. | | | FINDINGS AND ORDER |
| | | ||
| STATE TROOPERS ASSOCIATION | | | |
| OF NEBRASKA, | | | |
| | | ||
| Respondent. | | |
Appearances:
For the Petitioner: William A. Harding
Nelson and Harding
500 The Atrium
1200 "N" Street
P.O. Box 82028
Lincoln, Nebraska 68501-2028
Charles E. Lowe
Assistant Attorney General
2115 State Capitol
Lincoln, Nebraska 68509-4906
Steven Shaw, Counsel
Nebraska State Patrol
P.O. Box 94607
Lincoln, Nebraska 68509-4907
For the Respondent: J. Murry Shaeffer
633 South 9th Street, Suite 302
Lincoln, Nebraska 68508-2877
Before: Judges Cullan, Kratz and Orr
CULLAN, J:
NATURE OF PROCEEDINGS
The sole issue in this case is the appropriateness of the current collective bargaining unit represented by the Respondent State Troopers Association of Nebraska, hereinafter the Troopers. The Nebraska State Patrol, hereinafter the State, seeks to remove sergeants and sergeant investigators from the bargaining unit while the Troopers seek to add lieutenants.
Pursuant to a joint stipulation of the parties in State Troopers Association of Nebraska v. State of Nebraska , Case No. 561, November 5, 1984, the following bargaining unit was certified by the Commission:
All commissioned officers of the Nebraska State Patrol between the classifications of Trooper I through Sergeant, including the appropriate classifications and designations for those holding positions with the Criminal, Drug, and Special Services Divisions whose duties, responsibilities and pay classifications are equivalent to the duties, responsibilities and pay classifications for those persons employed by the Nebraska State Patrol between the classification of Trooper I through Sergeant.
The Nebraska State Patrol is a paramilitary police organization with state-wide jurisdiction. The patrol has responsibility for a wide range of law enforcement functions including enforcement of traffic and criminal laws, operating the Nebraska Law Enforcement Training Center, and providing security for the Governor and other elected officials.
The Patrol operates from headquarters located in Lincoln and regional offices scattered throughout the state and is commanded by a Superintendent/Colonel who directs the patrol from the Lincoln Headquarters. The command structure resembles a typical military organization. The normal chain of command above the lowest rank of Trooper is sergeant, lieutenant, captain, major, lieutenant colonel, superintendent/colonel.
The State argues that sergeants must be removed from the bargaining unit because they are supervisors who are precluded by law from being included in a single bargaining unit with any other employee who is not a supervisor. The Troopers argue that neither sergeants nor lieutenants are supervisors and that both should be included in the collective bargaining unit.
By statute, and before by judicial determination, supervisors and their subordinates are precluded from inclusion in the same collective bargaining unit. In City of Grand Island v. A.F.S.C.M.E. , 186 Neb. 711, 185 N.W.2d 860 (1970), the Nebraska Supreme Court held that supervisory personnel should be excluded from a bargaining unit of non-supervisory employees. This holding was followed and expanded in NAPE v. Nebraska Game & Parks Commission , 197 Neb. 178, 247 N.W.2d 449 (1976), where the court held that:
supervisory or managerial personnel may not enter into a bargaining unit with rank and file employees and may not retain the same bargaining agent.
See also , IBEW Local 1536 v. Lincoln Electric System , 215 Neb. 840, 341 N.W.2d 340 (1977).
These holdings preventing inclusion of supervisory and non-supervisory employees in the same collective bargaining unit were codified by the Legislature. In 1985, Section 48-816(3)(a) was amended to provide as follows:
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.
The Nebraska Supreme Court first dealt with the issue of determining which employees are supervisors in City of Grand Island v. A.F.S.C.M.E. , supra. There the court elected to apply a definition of supervisor borrowed from the National Labor Relations Act. The court defined a supervisor as:
any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility 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 of a merely routine or clerical nature, but requires the use of independent judgment.
In 1985, the Legislature codified the above definition of supervisor as Section 48-801(9) which provides:
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.
Numerous cases under the National Labor Relations Act have dealt with employees who have some supervisory characteristics but who are not true supervisors. The NLRB has held:
[G]raduations of authority "responsibility to direct" the work of others from that of general manager or other top executive to "straw boss" are so infinite and subtle that of necessity a large measure of informed discretion is involved in the exercise by the board of its primary function to determine those who as a practical matter fall within the statutory definition of "supervisor". NLRB v. Swift and Co. , 292 F.2d 561, 563 (2 CIR 1968); NLRB v. Security Guard Service, Inc. , 384 F.2d 143 (5 CIR 1967); See, NLRB v. Doctors Hospital of Modesto, Inc. , 489 F.2d 772 (9 CIR 1973); Kaiser Engineers v. NLRB , 538 F.2d 1379 (9 CIR 1976).
A "straw boss" within the decision of the NLRB performs a limited supervisory function in behalf of his immediate supervisor some of which may be routine, clerical, repetitive or rote tasks. His supervisory activities may be somewhat incidental to his principal function and performed within fairly limited guidelines.
One well-accepted definition of "straw boss" is found in Robert's Dictionary of Industrial Relations (3rd ed 1986):
A gang or a group leader, a worker who takes a lead in a group which consists of himself and a small number of other employees. He performs all of the duties of the other workers and his supervisory activities are incidental to his production of performance.
The NLRB has also held that an individual's direction of other employees is routine and therefore not supervisory where such direction is governed by detailed schedules, directives, rules or procedures. See, Westlake United Corp ., 236 NLRB 1114, 98 LRRM 1376 (1978) and Connecticut Light & Power Co. , 121 NLRB 768, 42 LRRM 1433 (1958).
In determining the appropriateness of a collective bargaining unit, further guidance is provided by Section 48-838(2) and by the Nebraska Supreme Court's holding in Sheldon Station Employees Ass'n. v. NPPD , 202 Neb. 391, 275 N.W.2d 816 (1979). Section 48-838(2) provides in part:
The commission shall also determine the appropriate unit for bargaining and for voting in the election, and in making such determination the commission shall consider established bargaining units and established policies of the employer.
Additional factors listed by the Nebraska Supreme Court in Sheldon are as follows:
In attempting to determine the appropriate unit for exclusive bargaining purposes under the provisions of the Nebraska Court of Industrial Relations Act, the mutuality of interest in wages, hours and working conditions, duties and skills of employees, extent of union organization among employees, the desires of employees, a policy against fragmentation of units, the established policies of the employees, and the statutory mandate to insure proper functioning and operation of governmental service, are to be considered. Those factors, however, are not the only factors to be considered, nor must each such factor be given equal weight. The factors appropriate to a bargaining unit consideration and the weight to be given each such factor must vary from case to case depending upon its particular applicability in each case.
As can be seen from the above, the Commission must determine whether sergeants and/or lieutenants are supervisors who must be excluded from the collective bargaining unit with Troopers or whether they are appropriate for inclusion. In doing so, "a large measure of informed discretion" must be exercised. It will also be borne in mind that the collective bargaining unit under consideration grew out of a joint stipulation of the parties less than two years before the trial herein, that there has been no significant change in Nebraska law in the interim, and that no material change in the authority or duties performed by sergeants or lieutenants during this period was demonstrated in the evidence.
BURDEN OF PROOF
The central public policy in Nebraska public sector labor law as expressed in Section 48-802 is "the continuous, uninterrupted and proper functioning and operation" of governmental service. This public policy underpins the Commissions desire to maintain continuity and stability in bargaining units absent reason for disruption or alteration of the status quo. The importance of this policy consideration is underscored by the above quoted holding of the Nebraska Supreme Court in Sheldon that the Commission "shall consider established bargaining units and established policies of the employer." In determining the appropriateness of an existing collective bargaining unit the Commission must consider the evidence while giving due regard to this important and long established public policy.
The Commission is called upon to make a factual determination regarding the supervisory authority of the Lieutenants and Sergeants of the Nebraska State Patrol. Each party to this action seeks to change the present bargaining unit. As previously stated, the State seeks to remove the Sergeants from the present rank and file unit based on their supervisory status. The Troopers conversely, seek the addition of the Lieutenants to the rank and file unit.
It is well settled law in this state that the burden of proof is on the moving party. The burden of proof and persuasion is on the party seeking modification of an existing collective bargaining unit to establish by a preponderance of the evidence facts which demonstrate that it is entitled to the modification sought. In the present case, the State has the burden of proving that the Sergeants are, in fact, supervisors and properly excludable from the current unit. The Troopers must prove that the Lieutenants serve in a non-supervisory capacity and, therefore, are properly includable in a rank and file bargaining unit.
There is a great deal of conflict in the evidence presented in the instant case. Contradictions exist between the opinions expressed by the expert witnesses, in the oral testimony of other witnesses, and the exhibits offered and received in evidence. The Commission, as the trier of fact, must resolve conflicts in the evidence whenever possible. "Credibility of witnesses and the weight to be given to their testimony are for the administrative agency as the trier of fact." City of Omaha v. Omaha Police Union , 222 Neb. 197, 382 N.W.2d 613, (1986).
After hearing and seeing the various fact and expert witnesses, reviewing and considering the documentary evidence in light of the testimony of such witnesses, and a careful consideration thereof, we find that neither party has met its burden of proof. We are not persuaded that the credible evidence preponderates in favor of the relief sought by either party. Consequently, we find that the bargaining unit shall remain as originally certified by the Commission pursuant to the joint stipulation of the parties on November 5, 1984.
IT IS THEREFORE ORDERED:
1.The appropriate bargaining unit remains as previously certified: All commissioned officers of the Nebraska State Patrol between the classifications of Trooper I through Sergeant, including the appropriate classifications and designations for those holding positions with the Criminal, Drug, and Special Services Divisions whose duties, responsibilities and pay classifications are equivalent to the duties, responsibilities and pay classifications for those persons employed by the Nebraska State Patrol between the classification of Trooper I through Sergeant.
All Judges assigned to the panel in this case join in the entry of this Findings and Order.
Entered February 27, 1987.
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