[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the Commission of Industrial Relations.
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.
[291 Neb. 497] 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 considered 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 finding of the CIR that the shift captains are not statutory supervisors under Nebraska's Industrial Relations Act.
In August 2013, the Union filed a petition with the CIR seeking to become the exclusive bargaining agent for employees 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 represent them and requested the CIR to conduct a certification 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 bargaining 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 [291 Neb. 498] 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 captains can be taken over by other employees.
Organization of Ambulance 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 operations, 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 responsible 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 employees, is to respond to 911 emergency dispatch calls. At an [291 Neb. 499] emergency scene, captains are supposed to maintain control 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 applicants for positions within the Ambulance Service. However, the captains do not determine who is hired. Instead, the captains 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, promotions are done on a certification basis.
The shift captains do not have the authority to effectuate 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 evaluations 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 ...