11 CIR 48 (1991). Appeal dismissed October 6, 1992.
SUPERVISORY, MANAGERIAL, | CASE NO. 783
AND PROFESSIONAL EMPLOYEES | REPRESENTATION DOC. NO. 267
BARGAINING ASSOCIATION, |
CITY OF BELLEVUE, |
For the Petitioner: Thomas F. Dowd
Thomas F. Dowd & Associates
1905 Harney Street, Suite 710
For the Respondent: John W. Herdzina
Abrahams, Kaslow & Cassman
8712 West Dodge Road, Suite 300
John E. Rice
1246 Golden Gate Drive
Before: Judges V. Moore, Orr, and Kratz
MOORE, J:
NATURE OF PROCEEDINGS
The Supervisory, Managerial and Professional Bargaining Association (hereinafter Association) seeks to become certified as the exclusive bargaining agent for a unit of supervisory employees of the City of Bellevue (hereinafter City).
The unit alleged to be appropriate by the Association in its Amended Petition is:
All regular full-time supervisory, managerial, and professional employees of the City of Bellevue, Nebraska, including but not limited to the job classifications set forth in Exhibit A (attached hereto), but specifically excluding the City Attorney and the City Administrator.
By its answer the City alleges that a unit of full time supervisory, managerial and professional employees, excluding the City Attorney and the City Administrator, is appropriate, but that the classifications set out as a part of the Association's Amended Petition do not constitute an appropriate unit. The City alleges that there exist conflicts of interest between some of the classifications and a lack of community of interest in others. The City also contends that some of the classifications are not supervisory or that they are managerial and, therefore, should not be in the unit.
Evidence adduced herein establishes that all of the employees of the City of Bellevue, except those included in the Petition filed herein, are currently represented by the Bellevue Employees Association (BEA) or the Bellevue Police Officers Association (BPOA). The evidence further shows that, for some time, most of the employees not otherwise being represented were attending 'management' meetings with the city administrators on a somewhat regular basis. In 1987, the city administrator determined that it was not effective to deal with such a large group so certain persons were designated to represent this 'managerial' group and to meet with the city managers' representative regarding personnel matters, including wages and fringe benefits. There is no evidence that said meetings rose to the level of formal recognition or that the meetings resulted in formal agreements regarding wages and other conditions of employment except that the parties did agree to submit a dispute regarding wages and longevity pay to final and binding arbitration.
By evidence introduced at this hearing and by stipulation of the parties, certain classifications were excluded from the list attached to the Amended Petition so that the Association now contends that the following job classifications constitute an appropriate bargaining unit:
Planning Director Accounting Supervisor
Human Resources Assistant Library Director
Coordinator City Planner
Foremen II Recreation Coordinator
Fire Marshal Professional Standards Officer-
Shop Superintendent PSO
Water Superintendent Captain
Wastewater Superintendent Finance Director
Personnel Director Park Superintendent
Street Superintendent Public Works Director
Library Director Police Chief
Purchasing Agent Engineering Tech III
The City does not dispute that the following classifications of personnel should be included in a supervisory bargaining unit:
Park Superintendent Engineering Tech III
Water Superintendent Accounting Supervisor
Wastewater Superintendent Assistant Library Director
Street Superintendent Recreation Coordinator
Shop Superintendent
We find that Respondent is an employer as defined by 48-801(4); that Petitioner is a labor organization as defined by 48-801(6); and that herein there exists an industrial dispute as defined by 48-801(7).
The issue presented is the determination of the appropriate unit for bargaining.
The Industrial Relations Act gives the Commission jurisdiction to determine the appropriate unit in representation cases, Neb. Rev. Stat. 48-838(2). The act also sets out certain specific rules applicable to different types of employees. Section 48-816(3)(a) provides:
Except as provided in subdivisions (b) and (c) of this subsection a supervisor shall not be included in a single bargaining unit with any other employee who is not a supervisor.
The Act defines a supervisor in 48-801(9):
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 responsibily 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.
At the hearing, the parties stipulated that all of the proposed classifications possess supervisory duties within the meaning of 48-801(9), except the job classifications of: Purchasing Agent, Foreman II, City Planner, Fire Marshall, Captain and PSO. As to the classifications that the parties cannot agree on, the Commission must determine which are not supervisory within the definition of 48-801(9) and thus not amenable to inclusion in this unit under 48-816(3)(a). However, before addressing the issue of which classifications are or are not supervisory, it is necessary to exclude three of the proposed job classifications because the organizational chart shows that the positions are within the police department of the city of Bellevue. Regardless of whether the classifications of Captain, PSO and Police Chief are supervisory or not, it is a well established principle that guards and non-guards cannot be in the same bargaining unit nor can they be represented by the same bargaining agent. See Lincoln City Employees Union, National Association of Governmental Employees v. City of Lincoln , 210 Neb. 751, 317 NW2d 63 (1982), Retail and Professional Employees Union, Local 1015, AFL-CIO v. Metropolitan Technical Community College Area , 3 CIR 512 (1978), and University Police Officers Union, IBPO, Local 567 v. University of Nebraska , 3 CIR 335 (1977).
Therefore, the positions of Captain, PSO and Police Chief cannot be included with this supervisory group of employees and will be excluded from this bargaining unit.
In measuring the standards of Section 48-801(9) as they apply to the classifications still in dispute, we looked at the job descriptions provided and the other evidence adduced at the hearing. In applying the 48-801(9) criteria to those classifications we find that the Purchasing Agent, City Planner and Fire Marshall are not supervisors within the meaning of the statute. We do not find that these positions possess sufficient responsibility or authority to rise to the level of supervisory status within the definition of the statute.
The other contested position is Foreman II. The City contends that this position is not supervisory, yet, they have previously excluded these employees from the BEA unit as being supervisory and the testimony shows that the job duties have not changed from the time they were excluded to date. The job description for the Foreman II also sets out various and numerous supervisory tasks and duties, all of which support a finding that the Foremen II are supervisors within the meaning of 48-801(9). However, we have difficulty including them in this bargaining unit because they are directly supervised by various other positions which the parties agree should be included in this supervisory unit. The Foremen II report directly to the superintendents of the various public works departments in the city and there is no dispute that the superintendents are appropriately included in the supervisory unit.
Under the National Labor Relations Act, supervisors are specifically excluded from the definition of employee and thus have no rights under the statutes. In Nebraska, the legislature has created an exception to this general rule, thus allowing supervisors to organize and exercise rights under the Industrial Relations Act. The effect of including supervisors in a bargaining unit contrary to the federal experience is to create a dual identity for supervisors. The supervisor is an employee when he is a member of a unit bargaining with the employer regarding wages, hours and conditions of employment, but an employer when acting as a supervisor in representing management in bargaining and in the administration of the negotiated agreement of the rank and file he supervises.
The Supreme Court has considered this matter in NAPE v. Nebraska Games & Parks Commission , 197 Neb. 178, 247 N.W.2d 449 (1977). Although Nebraska Game & Parks was decided prior to the amendment of Section 48-816, which directly speaks to allowing supervisors in a bargaining unit, and is also concerned with police and fire employees, the reasoning is still applicable to the case at hand. The Court held :
Material to a solution of this case is a determination of what is meant by the terms "employer" and "employee" for purposes of labor relations under Nebraska law. These terms have received a multiplicity of definitions under acts involving employer-employee relationships in other respects such as workmen's compensation and fair employment acts. None are applicable here. Resort must be had to legislative intention as expressed in Chapter 48, article 8, R.R.S. 1943. Most jurisdictions have specifically defined these terms and classified supervisory personnel as "management" as distinguished from employees. Experience under the National Labor Relations Act under which supervisory personnel were formerly classified as employees proved to be so unsatisfactory that it was amended by Congress so that supervisors could not be deemed employees. Presumably the Legislature was aware of the federal experience at the time the Nebraska act was amended in 1972 with regard to firemen and policemen.
Section 48-801, R.R.S. 1943, states: "Employer shall mean the State of Nebraska ***" and that "Employee shall include any person employed by any employer ***." The State, like a corporation, can only function through individual officers and assistants yet, strictly interpreted, the statute blandly ignores this fact. No line is drawn between management and labor. Department heads and officers would be free to enter into a bargaining unit with employees under their supervision and subject to be discharged by them. There would be no one left to negotiate in behalf of the State. Chaos would result and the public policy declared in section 48-802, R.R.S. 1943, would be completely nullified.
Section 48-823, R.R.S. 1943, provides that the act shall be liberally construed to effectuate the enunciated public policy. In City of Grand Island v. American Fed. of S.C. & M. Employees , 186 Neb. 711, 185 N.W.2d 860, we held that: "Individuals who are authorized to responsibly direct other employees are supervisory employees and should be excluded from an employee bargaining unit." That decision dealt with all city employees and personnel. Subsequently the Legislature amended section 48-816, R.S. Supp., 1969, to exempt certain fire and police officers from the effect of our ruling. The Legislature did not make a general amendment affecting all city managerial or supervisory officers, nor, indeed, did it exempt all fire and police officers. This restraint on the part of the Legislature demonstrates that it is cognizant of the necessity to separate departmental officials from the rank and file for bargaining purposes and we believe such to be the legislative intention.
To permit supervisory personnel to retain the same bargaining agent as the employees' union would be tantamount to permitting them to enter the same bargaining unit and such agent could, and doubtless would, manipulate its efforts jointly in behalf of each. We hold 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.
A reading of this opinion underlines the problems inherent in making exception to the federal experience which led to supervisory and managerial personnel being considered employers as opposed to employees. This opinion also emphasizes that any exception thereto must be clearly stated by the legislature. In light of the reasoning in NAPE v. Nebraska Parks and Games, supra , and in consideration of Section 48-816(3)(a) we believe that it is the intent of the legislature not only to require that all persons in a supervisory unit be supervisors but that supervisors cannot be included with other supervisory personnel whom they supervise. Not to do so is tantamount to being in violation of the holding in NAPE v. Nebraska Game and Parks Comm., supra wherein it says: "we hold that supervisory or managerial personnel may not enter a bargaining unit of rank and file employees and may not retain the same bargaining agent." Therefore, although the Foreman II classification is supervisory, we find that this position must be excluded because they are being directly supervised by other supervisors in the unit and therefore become employees as to those supervisors.
Lastly, the City argues that there are various positions which should not be included in this supervisory unit because they are managerial employees. The Commission has previously discussed the relationship between managerial employees and other employees in Rodeo Telephone, Inc. v. Rodeo Telephone, Inc. Supervisory Employees Association , 9 CIR 111 (1987). The Commission held as follows:
[T]he 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).
In applying these criteria to the classifications at issue we find the following job positions to be managerial in accordance with NLRB v. Bell Aerospace Co., supra :
Personnel Director Finance Director
Human Resource Director City Librarian
Planning Director Public Works Director
Including these managerial personnel with the supervisors that they manage also leads to the problems discussed above in reference to the position of Foreman II. These positions will therefore be excluded from the unit.
Section 48-838(2) sets out the following provisions for determining an appropriate unit:
...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. It shall be presumed, in the case of governmental subdivisions such as municipalities, counties, power districts, or utility districts with no previous history of collective bargaining, that units of employees of less than departmental size shall not be appropriate.
The Nebraska Supreme Court has expounded on the meaning and effect of this statute and explained its application in State Colleges Education Ass'n v. Board of Trustees , 205 Neb. 107, 286 N.W.2d 433 (1979) and Sheldon Station Employees Ass'n v. Neb. Public Power Dist. , 202 Neb. 391, 275 N.W.2d 816 (1979). In light of the statute and the guidance provided by the Supreme Court, this Commission has determined that all of the job classifications not otherwise excluded above constitute an appropriate bargaining unit.
IT IS THEREFORE ORDERED that:
1. The appropriate Bargaining Unit is defined as the following: All regular full time supervisory personnel of the City of Bellevue including the following job classifications:
Wastewater Superintendent Assistant City Librarian
2. The following job classifications shall be excluded from this supervisory bargaining unit: Purchasing Agent, City Planner, Fire Marshal, Police Chief, Police Captain, Police Lieutenant PSO, Personnel Director, Human Resource Director, Planning Director, Finance Director, City Librarian, Public Works Director, and Foreman II.
3. The City shall submit to the Commission, within ten days of the date of this Findings and Order, a revised alphabetical list of employees in the bargaining unit, as modified above, so that the showing of interest can be recalculated. This list shall contain the names of those people who were in the unit as of the filing date of the Petition or the nearest payroll date thereto.
All judges assigned to the panel in this case join in the entry of these Findings and Order.
EXHIBIT "A"
Personnel Director
Recreation Specialists
Fire Marshall
Human Resource Coordinator
City Librarian
Assistant City Librarian
Park Superintendent
Park Foreman II
Planning Director
City Planner
Police Chief
Police Captain
Police Lieutenant
Confidential Secretary
Executive Aide
Cable Access Coordinator
Engineering Technician III
Recreation Coordinator
Street Superintendent
Street Foreman II
Wastewater Superintendent
Wastewater Collection Foreman II
Water Superintendent
All of the individuals occupying the above classifications perform their services at the City of Bellevue facilities situated in the City of Bellevue, Nebraska.