Hamilton Cnty. EMS Ass'n v. Hamilton Cnty., S–14–435

CourtSupreme Court of Nebraska
Writing for the CourtMcCormack, J.
Citation866 N.W.2d 523
PartiesHamilton County EMS Association, IAFF Local 4956, appellee, v. Hamilton County, Nebraska, appellant.
Docket NumberNo. S–14–435,S–14–435
Decision Date31 July 2015

866 N.W.2d 523

Hamilton County EMS Association, IAFF Local 4956, appellee
Hamilton County, Nebraska, appellant.

No. S–14–435

Supreme Court of Nebraska.

Filed July 31, 2015

Erin L. Ebeler, of Woods & Aitken, L.L.P., Lincoln, and, on brief, Rachel K. Boyle for appellant.

866 N.W.2d 527

John E. Corrigan, of Dowd, Howard & Corrigan, L.L.C., Omaha, for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1. Commission of Industrial Relations: Appeal and Error.Any order or decision of the Commission of Industrial Relations 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 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.

866 N.W.2d 526

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 authority in the interest of the employer?

4. Labor and Labor Relations.The purpose of the exclusion of supervisors 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

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 direction 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. Commission of Industrial Relations: Labor and Labor Relations.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. Commission of Industrial Relations: Labor and Labor Relations.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 independent 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 supervisory 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. Labor and Labor Relations.The 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.

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.

McCormack, J.


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.1



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

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

866 N.W.2d 528

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

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....

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    ...181 (1991) ; State v. Eichelberger, 227 Neb. 545, 418 N.W.2d 580 (1988).14 See Hamilton Cty. EMS Assn. v. Hamilton Cty., 291 Neb. 495, 866 N.W.2d 523 (2015).15 See, State v. Menuey, 239 Neb. 513, 476 N.W.2d 846 (1991) ; State v. Bright, supra note 13 ; State v. Meyer, 236 Neb. 253, 460 N.W.......
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