Hamilton Cty. EMS Assn. v. Hamilton Cty.

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Nebraska A dvance Sheets
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HAMILTON CTY. EMS ASSN. v. HAMILTON CTY.
Cite as 291 Neb. 495
H amilton County EMS Association,
IAFF Local 4956, appellee,
v. H amilton County,
Nebraska, appellant.
___ N.W.2d ___
Filed July 31, 2015. No. S-14-435.
1. Commission of Industrial Relations: Appeal and Error. Any order
or decision of the Commission of Industrial Relations may be modi-
fied, reversed, or set aside by the appellate court on one or more of
the following grounds and no other: (1) if the commission acts without
or in excess of its powers, (2) if the order was procured by fraud or is
contrary to law, (3) if the facts found by the commission do not support
the order, and (4) if the order is not supported by a preponderance of the
competent evidence on the record considered as a whole.
2. Labor and Labor Relations. Generally, supervisors are not to be
included in a bargaining unit with other employees who are not
supervisors.
3. Commission of Industrial Relations: Labor and Labor Relations.
Three questions must be answered in the affirmative for an employee to
be deemed a supervisor under Neb. Rev. Stat. § 48-801(14) (Cum. Supp.
2014): First, does the employee have authority to engage in 1 of the 12
listed activities? Second, does the exercise of that authority require the
use of independent judgment? Third, does the employee hold the author-
ity in the interest of the employer?
4. Labor and Labor Relations. The purpose of the exclusion of supervi-
sors from bargaining units is to ensure that employees who exercise
discretionary authority on behalf of the employer will not divide their
loyalty between the employer and the union.
5. Commission of Industrial Relations: Labor and Labor Relations.
In order to ensure union protection to employees whom Neb. Rev. Stat.
§ 48-801(14) (Cum. Supp. 2014) is designed to protect, supervisory
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HAMILTON CTY. EMS ASSN. v. HAMILTON CTY.
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status must not be interpreted too broadly as to deny employee rights to
those whom the statute is intended to protect.
6. Labor and Labor Relations: Proof. Where an employer is attempting
to show that employees were supervisors, the employer has the burden
of proving their supervisory status in labor proceedings.
7. Commission of Industrial Relations: Labor and Labor Relations.
While an employee may be authorized to direct coworkers, for the direc-
tion to be supervisory under Neb. Rev. Stat. § 48-801(14) (Cum. Supp.
2014), the employee must also be responsible, meaning answerable for
the discharge of a duty or obligation.
8. ____: ____. To responsibly direct under Neb. Rev. Stat. § 48-801(14)
(Cum. Supp. 2014), the employee must be held fully accountable and
responsible for the performance and work product of the employees
he directs.
9. ____: ____. In order for Neb. Rev. Stat. § 48-801(14) (Cum. Supp.
2014) to apply to an employee, 1 of the 12 enumerated duties that are
associated with being a supervisor must also be exercised with indepen-
dent judgment.
10. Commission of Industrial Relations: Labor and Labor Relations:
Words and Phrases. The statutory term “independent judgment” is
ambiguous with respect to the degree of discretion required for supervi-
sory status.
11. Labor and Labor Relations. Many technically supervisory functions
may be performed without the exercise of such a degree of judgment or
discretion as would warrant a finding of supervisory status.
12. ____. The degree of judgment that might ordinarily be required to con-
duct a particular task may be reduced below the statutory threshold by
detailed orders and regulations issued by the employer.
13. Labor and Labor Relations: Proof. Secondary indicia only aid in
establishing supervisory status where there is evidence that one of the
statutory or primary indicia is first satisfied.
Appeal from the Commission of Industrial Relations.
Affirmed.
Erin L. Ebeler, of Woods & Aitken, L.L.P., and, on brief,
Rachel K. Boyle for appellant.
John E. Corrigan, of Dowd, Howard & Corrigan, L.L.C., for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
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HAMILTON CTY. EMS ASSN. v. HAMILTON CTY.
Cite as 291 Neb. 495
McCormack, J.
NATURE OF CASE
Hamilton County, Nebraska, appeals the finding of
Nebraska’s Commission of Industrial Relations (CIR) that two
captains of an ambulance service were nonsupervisors and thus
could be included in a bargaining unit with other employees.
The issue is whether the shift captains of Hamilton County
EMS Association, IAFF Local 4956 (Union), should be con-
sidered supervisors under Neb. Rev. Stat. § 48-801(14) (Cum.
Supp. 2014). The CIR found that the shift captains were not
supervisors and that therefore, they could be included in the
bargaining unit. Hamilton County appeals. We affirm the find-
ing of the CIR that the shift captains are not statutory supervi-
sors under Nebraska’s Industrial Relations Act.1
BACKGROUND
Union
In August 2013, the Union filed a petition with the CIR
seeking to become the exclusive bargaining agent for employ-
ees of the Hamilton County Ambulance Service (Ambulance
Service). The bargaining unit was to include all full-time
emergency medical technicians (EMTs), paramedics, and shift
captains. Eighty-eight percent of the claimed appropriate
bargaining unit members had authorized the Union to rep-
resent them and requested the CIR to conduct a certifica-
tion election.
The two captains, Brent Dethlefs and Jay Mack, were
included in the bargaining unit. The director and assistant
director were excluded from the bargaining unit. Hamilton
County objected to the captains’ inclusion in the bargain-
ing unit.
The CIR held a hearing on December 10, 2013. The CIR
found that the captains were not statutory supervisors because
“[t]he evidence show[ed] that both the job responsibilities of
1
Neb. Rev. Stat. §§ 48-801 through 48-842 (Reissue 2010 & Cum. Supp.
2014).
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HAMILTON CTY. EMS ASSN. v. HAMILTON CTY.
Cite as 291 Neb. 495
the Captain-Training Officer and Captain-Special Operations
are more in line with the Paramedics and EMTs than the
Director or Assistant Director.” The CIR found persuasive
the facts that “[c]aptains work the same work schedules, are
paid hourly, and receive the same fringe benefits as full-time
Paramedics and EMTs”; captains, paramedics, and EMTs are
eligible for overtime pay; the duties of the captains are shared
by other paramedics and EMTs; and any sole duties of the cap-
tains can be taken over by other employees.
Organization of
A mbulance Service
It is the responsibility of the Ambulance Service to respond
to emergency calls and provide transfers for patients between
medical facilities. The Ambulance Service is staffed with a
director, an assistant director, two shift captains, and several
full-time and part-time EMTs and paramedics. Three full-time
employees are staffed on each shift. Each shift has a shift
captain who doubles as either training officer, special opera-
tions, or assistant director. All of the shift captains double as
paramedics. Currently, the shift captains are Mack, temporary
captain/paramedic; Tim Graham, special operations captain/
paramedic; and Dethlefs, training captain/paramedic.
Shift Captains’ Duties
Each shift has a daily checklist that the shift workers are
responsible for completing before the end of the day. The
shift captain is responsible for ensuring that the checklist is
completed before the end of the shift. As one captain testified,
“The captain doesn’t tell you to do the checklist. The captain is
there to make sure it gets done, but that’s his — kind of one of
his duties.” The shift workers are also responsible for keeping
up the “day book.” Typically, the shift captain or senior medic
maintains and makes entries into the day book and is respon-
sible for all entries in the book, but other employees may write
in the day book if asked to do so.
The primary function of shift captains, like regular employ-
ees, is to respond to 911 emergency dispatch calls. At an
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emergency scene, captains are supposed to maintain con-
trol or command. Control of the emergency scene would,
regardless, be with the paramedics, because they have the
most training.
The shift captains also participate in interviews of new appli-
cants for positions within the Ambulance Service. However,
the captains do not determine who is hired. Instead, the cap-
tains are there to provide input on the decision. The director
makes the ultimate hiring decision. The captains also do not
have authority to determine who is promoted. Rather, promo-
tions are done on a certification basis.
The shift captains do not have the authority to effectu-
ate a layoff or to fire employees. The director is the officer
who fires employees. Captains, however, send problems with
employees on their shifts to the director. Mack and Dethlefs
concurred that they felt they would have the authority to send
someone home from a shift, if, for example, that worker came
to work intoxicated. The captains do performance evalua-
tions on their workers. The captains can also do writeups on
both good and bad behavior. But both Mack and Dethlefs
stated that they leave disciplinary matters to the director.
Mack stated that he felt he would have a voice or right to
express an opinion about whether someone’s employment
was terminated.
Captains can suggest shift changes, but cannot unilaterally
make shift changes. In the role as captain, captains do have
the authority to move someone from “backup” to “first call.”
Captains also have authority to make “special rules” for their
shift. For example, Dethlefs has instituted a rule that workers
are not to play games on their shift.
Under the Ambulance Service regulations, the chain of
command is seven tiered. The regulations state that the force
will consist of the director, the assistant director, three cap-
tains, full-time employees, and part-time employees. The rank
of command is first, the county commissioners; second, the
director; third, the assistant director; and fourth, the shift
captains. The job description of a shift captain states that
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HAMILTON CTY. EMS ASSN. v. HAMILTON CTY.
Cite as 291 Neb. 495
“[t]his position encompasses supervisory and management
work . . . .”
All captains are paid hourly, like the other full-time and
part-time workers for the Ambulance Service. There are no
differences between the benefits offered to supervisors and
regular employees.
Testimony
The director of the Ambulance Service, Catherine Sigler,
testified that she would consider each shift captain a supervi-
sor. Sigler believes other workers consider their shift captain
their supervisor as well because they look to them for direc-
tion for the shift or on a scene. According to Sigler, “If the
Director or Assistant Director is unavailable, then the captain
is to do whatever needs to be done during their shift.” She
said this might include calls that need to be made or deci-
sions that need to be made—including how many ambulances
to send to a particular scene. Sigler also testified that cap-
tains exercise independent judgment by running their shift
and dealing with problems that arise, by giving guidance
in hiring, and by giving their workers rules on their shifts.
However, Sigler did admit that the captains’ primary function
is to be on shift and respond to calls as they come in. She
also admitted that captains cannot hire and fire employees as
they wish.
Mack is a temporary shift captain, taking over the duties of
another shift captain, Graham, when he went away on deploy-
ment in Texas. Mack states that he does not feel his duties
have changed since he became a temporary shift captain from
a paramedic for the Ambulance Service. Other shift workers
testified that the captains do the checklist activities alongside
the other workers and that the captains essentially perform the
same duties as the rest of the shift workers.
ASSIGNMENTS OF ERROR
Hamilton County assigns as error the CIR’s finding that
the shift captains could be included with the nonsupervisors’
bargaining unit. Specifically, Hamilton County assigns as error
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the findings that (1) the two captains were not statutory super-
visors and (2) the captains’ responsibilities were more akin to
EMTs and paramedics, than to the director and assistant direc-
tor, and thus shared a community of interest with the employ-
ees the captains supervise.
STANDARD OF REVIEW
[1] Any order or decision of the CIR may be modified,
reversed, or set aside by the appellate court on one or more of
the following grounds and no other: (1) if the CIR acts without
or in excess of its powers, (2) if the order was procured by
fraud or is contrary to law, (3) if the facts found by the CIR
do not support the order, and (4) if the order is not supported
by a preponderance of the competent evidence on the record
considered as a whole.2
ANALYSIS
The issue before us is whether or not shift captains should
be considered supervisors under the Industrial Relations Act.
If the shift captains are supervisors, then they cannot be
included in a bargaining unit with other lower level employees.
However, if the shift captains are not statutory supervisors,
then they may be included in the bargaining unit with the other
employees. The CIR correctly classified the shift captains
as nonsupervisors.
Shift Captains as Statutory
Supervisors
[2,3] Generally, supervisors are not to be included in a
bargaining unit with other employees who are not supervi-
sors.3 “Supervisor” is defined by the Industrial Relations Act
as follows:
2
§ 48-825(4).
3
§ 48-816(3)(a); IBEW Local Union No. 1597 v. Sack, 280 Neb. 858, 793
N.W.2d 147 (2010); PLPSO v. Papillion/LaVista School Dist., 252 Neb.
308, 562 N.W.2d 335 (1997). See IBEW Local 1536 v. Lincoln Elec. Sys.,
215 Neb. 840, 341 N.W.2d 340 (1983).
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[A]ny public employee having authority, in the inter-
est of the public employer, to hire, transfer, suspend,
lay off, recall, promote, discharge, assign, reward, or
discipline other public employees, or responsibility to
direct them, to adjust their grievances, or effectively
to recommend such action, if in connection with such
action the exercise of such authority is not of a merely
routine or clerical nature but requires the use of inde-
pendent judgment.4
Three questions must be answered in the affirmative for
an employee to be deemed a supervisor under this statute:
“First, does the employee have authority to engage in 1 of
the 12 listed activities? Second, does the exercise of that
authority require ‘the use of independent judgment’? Third,
does the employee hold the authority ‘in the interest of
the employer’?”5
[4,5] The purpose of the exclusion of supervisors from
bargaining units is to ensure that employees who exercise dis-
cretionary authority on behalf of the employer will not divide
their loyalty between the employer and the union.6 However, in
order to ensure union protection to employees whom the statute
is designed to protect, supervisory status must not be inter-
preted too broadly as to deny employee rights to those whom
the statute is intended to protect.7
4
§ 48-801(14).
5
N.L.R.B. v. Health Care & Retirement Corp. of America, 511 U.S. 571, 574,
114 S. Ct. 1778, 128 L. Ed. 2d 586 (1994). See IBEW Local Union No.
1597 v. Sack, supra note 3. See, also, N.L.R.B. v. Dole Fresh Vegetables,
Inc., 334 F.3d 478 (6th Cir. 2003); Cooper/T. Smith, Inc. v. N.L.R.B., 177
F.3d 1259 (11th Cir. 1999).
6
N.L.R.B. v. Yeshiva University, 444 U.S. 672, 100 S. Ct. 856, 63 L. Ed. 2d
115 (1980).
7
N.L.R.B. v. GranCare, Inc., 170 F.3d 662 (7th Cir. 1999). See Holly
Farms Corp. v. NLRB, 517 U.S. 392, 116 S. Ct. 1396, 134 L. Ed. 2d 593
(1996).
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The National Labor Relations Act8 has a nearly identical
definition of “supervisor.” The National Labor Relations Act
defines a “supervisor” as follows:
[A]ny 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 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 of a merely routine or clerical nature, but
requires the use of independent judgment.9
Since Nebraska’s statute so closely resembles that of the fed-
eral statute, we find federal case law interpreting this statute
instructive. We will use federal case law in examining each of
the elements instructive in determining when employees are
statutory supervisors.
[6] In general, the burden of proving an exemption rests
on the party claiming it.10 Particularly, where an employer
is attempting to show that employees were supervisors, the
employer has the burden of proving their supervisory status in
labor proceedings.11
Authority to Hire or Promote
If the employee has an ability to hire or promote other
employees, then they can be considered supervisors under
the Industrial Relations Act.12 In Cooper/T. Smith, Inc. v.
N.L.R.B.,13 the “docking pilots” made recommendations as
8
See 29 U.S.C. §§ 151 through 187 (2012).
9
29 U.S.C. § 152(11).
10
See, e.g., Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84, 128
S. Ct. 2395, 171 L. Ed. 2d 283 (2008); Corning Glass Works v. Brennan,
417 U.S. 188, 94 S. Ct. 2223, 41 L. Ed. 2d 1 (1974).
11
See NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, 121 S.
Ct. 1861, 149 L. Ed. 2d 939 (2001).
12
See § 48-801(14).
13
Cooper/T. Smith, Inc. v. N.L.R.B., supra note 5, 177 F.3d at 1264.
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to hiring and firing, and their recommendations were almost
always followed (the vice president “never made a personnel
decision against the recommendations of the docking pilots”).
The 11th Circuit Court of Appeals found that the authority to
make recommendations alone does not indicate supervisory
status.14 Further, the Ninth Circuit Court of Appeals stated that
it is merely “the practice of a prudent employer to seek the
advice of his foreman in evaluating employees.”15
Similarly to Cooper/T. Smith, Inc., the Hamilton County
shift captains sit in on interviews and give their opinions as to
who should be hired in the department when a position opens.
The shift captains also complete performance evaluations on
other employees in their shift. However, the evidence is uncon-
troverted that the shift captains do not have the ultimate
authority to hire, fire, or promote any employee in the depart-
ment. As the Ninth Circuit stated, it is merely good practice
to seek the opinions of someone present at the scene of the
work before hiring or firing, and to evaluate employees. Thus,
the shift captains do not have the authority to hire or promote
under the statute.
Authority to Transfer, Suspend,
Lay Off, R ecall, Discharge,
or Discipline
If an employee has the authority to transfer, suspend, lay
off, recall, discharge, or discipline other employees, then he or
she may qualify as a statutory supervisor.16 Because the shift
captains do not ultimately have that authority, we disagree
with Hamilton County.
In Frenchtown Acquisition Co., Inc. v. N.L.R.B.,17 the charge
nurses were able to complete “in-services,” which led to the
14
Cooper/T. Smith, Inc. v. N.L.R.B., supra note 5.
15
George C. Foss Co. v. N.L.R.B., 752 F.2d 1407, 1411 (9th Cir. 1985).
16
See § 48-801(14).
17
Frenchtown Acquisition Co., Inc. v. N.L.R.B., 683 F.3d 298, 307 (6th Cir.
2012).
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discipline of other employees. However, these in-services were
only the first step in a disciplinary process and only brought
errors or misconduct to the manager’s attention; then, the
manager decided how to proceed. The court held that such
limited involvement in the disciplinary process did not satisfy
the employer’s burden of proving that these charge nurses had
statutory responsibilities under the statute.18
Hamilton County argues that because the shift captains
complete performance evaluations on employees, they are
effectively able to discipline the employees. Hamilton County
also argues that because captains execute oral warnings and
written warnings for positive and negative conduct, they effec-
tively discipline the other employees. However, these types
of duties are very similar to the in-services reports of the
charge nurses which merely were the first step in a discipli­
nary process.
Hamilton County also points to the fact that shift captains
stated that if they saw another shift worker appear at work
intoxicated, they felt they would be able to send that worker
home. However, one shift captain also testified that he would
first attempt to call the director about the situation, and if
unable to reach the director, he would most likely ask the
intoxicated worker to leave. Hopefully other workers, particu-
larly in the position of EMTs whose functions are to drive an
ambulance and respond to medical emergencies, would also
feel that their safety and professional integrity would be endan-
gered by having an intoxicated worker on the shift and would
also ask the intoxicated worker to leave if they could not con-
tact a superior.
The shift captains cannot actually dispense disciplinary
actions or recommend a level of discipline. Shift captains
only report what has occurred on their shift. Disciplinary
actions, such as suspensions, lay offs, recalls, transfers, dis-
charges, or other types of discipline have to be approved
18
Id.
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by the director. Thus, shift captains do not have the statu-
tory authority to transfer, suspend, lay off, recall, discharge,
or discipline.
Authority to R esponsibly Direct
[7,8] If an employee has the responsibility to direct work-
ers, then the employee may be considered supervisory under
the statute.19 While an employee may be authorized to direct
coworkers, for the direction to be supervisory under the statute,
the employee must also be responsible, meaning “‘answer-
able for the discharge of a duty or obligation.’”20 To respon-
sibly direct, the employee must be “held fully accountable
and responsible for the performance and work product of the
employees he directs.”21 Further, even though an employee
holds a highly responsible position, this does not alone mean
that an employee is a supervisor.22 As the U.S. Supreme Court
has stated:
[E]mployees whose decisionmaking is limited to the rou-
tine discharge of professional duties in projects to which
they have been assigned cannot be excluded from cov-
erage even if union membership arguably may involve
some divided loyalty. Only if an employee’s activities fall
outside the scope of the duties routinely performed by
similarly situated professionals will he be found aligned
with management. We think these decisions accurately
capture the intent of Congress . . . .23
For example, in Cooper/T. Smith, Inc., even though the
employees were highly trained and directed others in complex
and potentially dangerous work, the court found that “[t]he
19
See § 48-801(14).
20
N.L.R.B. v. KDFW-TV, Inc., Div. of Times Mirror Corp., 790 F.2d 1273, 1278
(5th Cir. 1986).
21
Id. (quoting Marine Yankee Atomic, Etc. v. N. L. R. B., 624 F.2d 347
(1980)).
22
See, e.g., Exxon Pipeline Co. v. N. L. R. B., 596 F.2d 704 (5th Cir. 1979).
23
N.L.R.B. v. Yeshiva University, supra note 6, 444 U.S. at 690.
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expertise is not . . . exercised with a management preroga-
tive, but rather as an experienced employee.”24 Similarly, in
Neighborhood Legal Services,25 attorneys were not found to
be supervisors, even though they trained, assigned, or directed
work of legal assistants and paralegals. Instead, the training,
assigning, or directing was an incident of their professional
responsibilities as attorneys.
The position of a charge nurse, with some supervisory
duties, but mainly professionally mandated duties, has been
analyzed by many courts aiming to determine whether such
a job should be classified as supervisory.26 One court stated
that “‘nurses are professionals and their exercise of supervi-
sion is guided by professional training and norms.’”27 There is
no issue of divided loyalties when “‘supervision is required to
conform to professional standards rather than to the company’s
profit-maximizing objectives.’”28
Neither does a duty to train other workers mean that an
employee has a duty to responsibly direct or that he or she
is a supervisor. Even where employees are required to train
their coworkers, this alone is not an indication of supervisory
status, but, rather, reflects the experience and professional
training that those more senior employees already possess.29
For example, in Cooper/T. Smith, Inc., the “docking pilots”
24
Cooper/T. Smith, Inc. v. N.L.R.B., supra note 5, 177 F.3d at 1267.
25
Neighborhood Legal Services, 236 N.L.R.B. 1269 (1978).
26
See, NLRB v. Kentucky River Community Care, Inc., supra note 11; NLRB
v. Health Care & Retirement Corp. of America, supra note 5; Frenchtown
Acquisition Co., Inc. v. N.L.R.B., supra note 17; N.L.R.B. v. GranCare,
Inc., supra note 7; Providence Alaska Medical Center v. N.L.R.B., 121
F.3d 548 (9th Cir. 1997).
27
N.L.R.B. v. GranCare, Inc., supra note 7, 170 F.3d at 666 (quoting
Children’s Habilitation Center, Inc. v. N.L.R.B., 887 F.2d 130 (7th Cir.
1989)).
28
Id. at 666-67.
29
See, Cooper/T. Smith, Inc. v. N.L.R.B., supra note 5; N.L.R.B. v. ADCO
Elec. Inc., 6 F.3d 1110 (5th Cir. 1993).
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were required to train employees. However, docking pilots, by
nature of their job, were required to have more training and
experience. The court held that this was not an “indication of
supervisory status, but rather reflects the nature of the docking
pilot job itself.”30
Though there is no written rule stating that the shift captains
must be the most senior or most experienced on the shift, it
seems that in the Hamilton County department, the shift cap-
tains are the most senior and experienced of the shift workers.
Just because these shift captains have more experience than
other employees does not make them supervisory. The fact that
the shift captains also happen to be more senior paramedics,
and thus often have more training than other shift workers, is
not indicative of their supervisory status.
Similarly to the charge nurses in the federal cases and the
docking pilots in Cooper/T. Smith, Inc., the shift captains are
required to give some level of direction to their coworkers. As
a part of the shift captains’ profession, it is their job to respond
to 911 calls and to ensure that medical emergencies have a
proper response. It is not merely because of their status as shift
captains, but also because of their professional responsibil-
ity as a licensed paramedic to ensure that these responsibili-
ties are carried out. Further, there is testimony that any shift
captain’s function at an emergency scene would be to take
control or command of the scene—this function is not unique
to shift captains. Rather, the paramedic on the scene should
have control, regardless of the fact that the paramedic is also
a shift captain.
During a typical day, the shift captain makes entries in the
day book and makes sure work gets done that is on the daily
checklist. However, one captain testified that “[t]he captain
doesn’t tell you to do the checklist.” All of the workers par-
ticipate in completing the duties before the day’s end. Also,
workers testified that though the shift captain typically makes
the day book entries, anyone else on the shift can do so as
30
Cooper/T. Smith, Inc. v. N.L.R.B., supra note 5, 177 F.3d at 1264.
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HAMILTON CTY. EMS ASSN. v. HAMILTON CTY.
Cite as 291 Neb. 495
well. The three shift workers (including the shift captain) seem
to be in the trenches together and working as a team during
their shifts.
The shift captains do sometimes manage staffing on their
shifts. For example, Dethlefs once needed to fill a space
when shift workers went to a class. Dethlefs testified that he
called the director first to check, but ended up calling people
to fill in the shifts. Dethlefs also testified that he could ask
the director to transfer a worker, but that would not necessar-
ily happen—he could not unilaterally control whether or not
someone was transferred. There is some testimony providing
that shift captains have the ability to switch shift workers from
backup to first call where they need to. However, the director
first designates this schedule, and the shift captain then can
redesignate as needed.
Because the shift captains’ responsibilities are already cir-
cumscribed to the shift captains by Hamilton County and the
director of the department, and because any other responsi-
bilities are those that are professional responsibilities in the
first place, we find that the shift captains do not responsibly
direct their coworkers as defined by the statute.
Authority to A djust Grievances
If an employee has an authority to adjust grievances, then
the employee may be classified as a supervisor under the stat-
ute. In this case, a shift captain testified that he did not have
the ability or authority to adjust or resolve grievances and that
if someone brought to him a dispute about his or her employ-
ment, he would direct that person to the director. And Hamilton
County does not argue that the shift captains have the authority
to adjust grievances.
Exercise of Independent Judgment
Though we have found that none of the 12 enumerated
duties are present in the shift captains’ job, as a matter of thor-
oughness, we also find that the shift captains do not exercise
the degree of independent judgment required of supervisors
under statute.
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HAMILTON CTY. EMS ASSN. v. HAMILTON CTY.
Cite as 291 Neb. 495
[9-12] In order for § 48-801(14) to apply to an employee,
1 of the 12 enumerated duties that are associated with being
a supervisor must also be exercised with independent judg-
ment. The statutory term “independent judgment” is ambigu-
ous with respect to the degree of discretion required for
supervisory status.31 Many technically supervisory functions
may be performed without the “‘exercis[e of] such a degree of
. . . judgment or discretion . . . as would warrant a finding’”
of supervisory status.32 “[T]he degree of judgment that might
ordinarily be required to conduct a particular task may be
reduced below the statutory threshold by detailed orders and
regulations issued by the employer.”33 As a matter of policy,
the U.S. Supreme Court has reiterated, if any person who
uses independent judgment to assign tasks to others or direct
their work is a supervisor, then few professionals employed
by organizations subject to the labor laws would receive
its protections.34
The duties of a Hamilton County shift captain, while requir-
ing independent judgment as would be required in any job,
do not fall outside of the normal duties of any other worker
at the department. The shift captains are given a list of duties
that need to be completed each day, and the shift captains
make sure the duties are completed. Even though the shift
captain can ask that other shift workers ensure that the duties
are completed, the shift captain can only use this independent
judgment as circumscribed by his employer, to ensure that all
shift duties are completed by the end of each workday. Further,
each shift captain is a paramedic, who also has professional
responsibilities that sometimes include assignment of duties
31
N.L.R.B. v. Kentucky River Community Care, Inc., supra note 11.
32
Id., 532 U.S. at 713 (quoting Weyerhaeuser Timber Company, 85 N.L.R.B.
1170 (1949)).
33
N.L.R.B. v. Kentucky River Community Care, Inc., supra note 11, 532 U.S. at
713-14.
34
N.L.R.B. v. Kentucky River Community Care, Inc., supra note 11.
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Cite as 291 Neb. 495
and direction of other workers. As a matter of policy, not all
professionals who use independent judgment in carrying out
their professional responsibilities are supervisors.
The independent judgment exercised by Hamilton County
shift captains, though present as in any professional job, falls
below the statutory threshold to make the shift captains super-
visors under the statute.
In Interest of Employer
Finding that the first two requirements of being a supervi-
sor under the Industrial Relations Act are not met, we need not
examine the third requirement that the duties be carried out “in
the interest of the employer.”
R emaining A rguments
[13] Hamilton County also makes several arguments based
on considerations that are not encompassed by the statute.
These considerations are otherwise known as secondary indi-
cia. Circuits have held that secondary indicia should be relied
upon only in limited circumstances.35 Secondary indicia only
aid in establishing supervisory status where there is evidence
that one of the statutory or primary indicia is first satisfied.36
Because we do not find that one of the statutory indicia is satis-
fied, we do not address other remaining indicators of supervi-
sory status.
We do not address Hamilton County’s assignment of error
that the CIR erroneously applied the community of interest
exception to the department, because regardless of this excep-
tion’s application, we find that the shift captains are not super-
visors and can be considered in a bargaining unit with the other
shift workers.
35
See, e.g., Jochims v. National Labor Relations Bd., 480 F.3d 1161
(C.A.D.C. 2007); N.L.R.B. v. Dole Fresh Vegetables, Inc., supra note 5.
36
See, e.g., Public Service Co. of Colorado v. N.L.R.B., 405 F.3d 1071 (10th
Cir. 2005); Billows Electric Supply, 311 N.L.R.B. 878 (1993); Juniper
Industries, 311 N.L.R.B. 109 (1993).
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HAMILTON CTY. EMS ASSN. v. HAMILTON CTY.
Cite as 291 Neb. 495
Where the record demonstrates that the decision of the trial
court is ultimately correct, although such correctness is based
on a ground or reason different from that assigned by the
trial court, an appellate court will affirm.37 Further, Hamilton
County had the burden of proving that the shift captains
were supervisors, and it did not meet that burden. Therefore,
we uphold the CIR’s findings that the shift captains are not
statutory supervisors under § 48-801(14) and that shift captains
should be included in the bargaining unit.
CONCLUSION
We find that the CIR did not err in classifying the two shift
captains as nonsupervisors and allowing them to take part in
the workers’ bargaining unit.
A ffirmed.
37
Tyson Fresh Meats v. State, 270 Neb. 535, 704 N.W.2d 788 (2005); Semler
v. Sears, Roebuck & Co., 268 Neb. 857, 689 N.W.2d 327 (2004).