LOCAL 189 INTERN. UNION, ETC. v. Barrett, Civ. A. No. C81-1557A.

• Decision Date: 26 October 1981
• Docket Number: Civ. A. No. C81-1557A.
• Citation: 524 F. Supp. 760
• Parties: LOCAL 189 INTERNATIONAL UNION OF POLICE ASSOCIATIONS, and Morris Toler, W. R. Moody, Sharon Moody, Bobby Hulsey, R. R. Roper, B. L. Pope, Scott Myer, W. O. Moore, Anthony Rollins and all others similarly situated, Plaintiffs, v. Ernest BARRETT, George Lankford, Butch Thompson, Wit Carson, Jr., Harvey Paschal, individually and as members of the Cobb County Board of Commissioners, William Buckner, individually and as Personnel Director of Cobb County, Georgia, Robert Hightower, individually and as Director of Public Safety of Cobb County, Georgia; and, Bull Hutson, individually and as Sheriff of Cobb County, Georgia, Defendants.
• Court: U.S. District Court — Northern District of Georgia

524 F. Supp. 760

LOCAL 189 INTERNATIONAL UNION OF POLICE ASSOCIATIONS, and Morris Toler, W. R. Moody, Sharon Moody, Bobby Hulsey, R. R. Roper, B. L. Pope, Scott Myer, W. O. Moore, Anthony Rollins and all others similarly situated, Plaintiffs, v. Ernest BARRETT, George Lankford, Butch Thompson, Wit Carson, Jr., Harvey Paschal, individually and as members of the Cobb County Board of Commissioners, William Buckner, individually and as Personnel Director of Cobb County, Georgia, Robert Hightower, individually and as Director of Public Safety of Cobb County, Georgia; and, Bull Hutson, individually and as Sheriff of Cobb County, Georgia, Defendants.

Civ. A. No. C81-1557A.

United States District Court, N. D. Georgia, Atlanta Division.

October 26, 1981.

Edward T. M. Garland, Bettye Hynson Kehrer and Walter Moore Henritze, Jr., Garland, Nuckolls & Catts, P. C., Atlanta, Ga., for plaintiffs.

Edward Katze, Constangy, Brooks & Smith, Atlanta, Ga., Irma Glover, Sams, Glover, Gentry & Adams, Marietta, Ga., for defendants.

ORDER

ROBERT H. HALL, District Judge.

Plaintiffs, a group of policemen¹ employed by Cobb County, Georgia, have filed suit in this court seeking declaratory and injunctive relief and asking specifically that this court declare a resolution enacted by defendant Cobb County Commission on August 11, 1981, unconstitutional on its face and as applied, and enjoin defendants from enforcing this resolution and from dismissing, suspending, or otherwise interfering with plaintiffs'² occupation because of their activity in attempting to organize a labor union, Local 189 International Union of Police Associations, AFL-CIO. Jurisdiction is invoked pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1331.

On August 19, 1981, this court denied plaintiffs' motion for a temporary restraining order on the grounds inter alia that plaintiffs had failed to demonstrate that they would suffer irreparable harm if the temporary restraining order were not issued. Thereafter, this court denied plaintiffs' motion for reconsideration as well, and plaintiffs then filed a motion for a preliminary injunction. Defendants moved to consolidate the evidentiary hearing scheduled for the court's consideration of plaintiffs' motion for a preliminary injunction with a trial on the merits; and, after receiving no opposition from plaintiffs, the court granted the motion and heard evidence on plaintiffs' motion for a permanent injunction on September 2-3, 1981. Having received post-hearing proposed findings of fact and conclusions of law and memoranda in support thereof from the parties, the court hereby issues the following findings of fact and conclusions of law.

Findings of Fact

In early July 1981 some police officers employed by Cobb County approached the Director of Public Safety, Robert Hightower, and informed him of their desire to unionize and to demand that the Cobb County Commission recognize Local 189 as the collective bargaining agent for policemen and sheriff's deputies within the county. Thereupon, Mr. Hightower arranged an informal meeting between those representatives of the proposed Local 189 and certain commissioners so that they could discuss various issues which had surfaced as a result of the unionization effort. At that meeting policemen discussed the probability that at some point rank and file policemen and supervisors must be separated for the purpose of unionization.

Upon learning that the Cobb County policemen wanted to unionize, the Commission sought advice from legal counsel. The Commission indicated to counsel that they did not want to recognize any union as a bargaining agent for the policemen or to allow rank and file and supervisors to be members of the same union. The Commissioners were concerned that a conflict of interest may erupt between rank and file policemen and those officers responsible for disciplining and evaluating the performance of the rank and file if all officers were permitted to join the same union. In the vernacular, they were concerned about what would happen if a "blue flu" epidemic afflicted the rank and file or if rank and file would feel pressured to join a union by being "encouraged" to do so by their supervisors.

In response to these concerns of the Commission, counsel drafted a proposed resolution which was adopted by the Commission, as follows:

"WHEREAS, the Cobb County Board of Commissioners has met and conferred to discuss the question of recognizing or negotiating with a labor or other organization claiming to represent county employees, now, therefore, be it resolved:

1. The Cobb County Board of Commissioners has not and will not recognize or negotiate with any labor or other organization as a collective bargaining agent for any county employee or group of county employees.

2. There will be no discussion, formal or informal between Cobb County or any agent thereof and any labor or other organization claiming to represent county employees or any group of county employees.

3. Employees in a supervisory capacity are prohibited from joining, belonging to, or participating in any activities of any labor or other organization claiming to represent county employees or any group of county employees, which organization includes membership of rank and file employees of Cobb County.

4. The provisions of Chapter 89-13 of the Georgia Code Ann. are adopted as applicable to employees of Cobb County."³

Counsel also prepared a checklist of nineteen (19) criteria for the purpose of ascertaining which persons should be classified as employees in a "supervisory capacity." This list was garnered from the Labor Management Relations Act (LMRA), 29 U.S.C. § 152(11), and case law interpreting it.

On August 12, 1981, Mr. William J. Buckner, Director of Personnel for Cobb County, sent the following memorandum to various department heads, including Robert Hightower, Director of Public Safety:

On August 11, 1981, the Board of Commissioners adopted the attached Resolution which states in part that County employees who serve in a supervisory capacity are not permitted to join, belong to or participate in the activities of a labor or other organization that claims to represent County rank and file employees. In order to determine which of the employees in your department are supervisors, the following criteria are listed for your guidance in making this determination:

— Does the individual have the authority to hire and fire subordinates?

— Does the individual have the authority to promote and demote subordinates?

— Can the individual "effectively recommend" (cause an action to become a reality with some consistency and predictability) the hiring, firing, promotion and demotion of subordinates?

— Does the individual have the authority to discipline other employees?

— Can the individual direct the work of others?

— Does the individual have the authority to transfer other employees?

— Does the individual have the authority to suspend, layoff, or recall other employees?

— How many employees does the individual direct? (The control of two or more employees enhances the possibilities of one being a bona fide supervisor).

— Does the individual use his/her own initiative and ingenuity in directing the work of others?

— In the absence of upper level managers, does the individual have the authority and responsibility to assume the boss's job?

— Do the requirements of the individual's job require that he/she exercise independent judgment in the interest of the employer rather than the performance of routine or clerical functions?

— Is the individual paid differently than the other employees he/she directs (i. e., salary versus hourly wage; overtime treatment)?

— Is the individual's salary indicated on organizational budgets as part of a managerial salary, part of the employees' wage bill or some separate category?

— Are entry requirements for supervisory jobs different than those for unit employees?

— Is the individual's job concerned with directing, developing and evaluating others as opposed to doing the same work as the unit employees?

— Does the individual process grievances for management?

— Is the individual included in regular management meetings that are not attended by rank and file employees?

— Is the individual accountable for the work of others?

— Is the individual considered by his fellow workers and by himself to be a supervisor?

In applying these criteria, it is important to remember that the status of supervisor is determined by an individual's actual duties, not simply by his or her title or job classification. Special attention should also be given to whether an individual exercises independent judgment in the interest of the employer in the performance of the job.

After you have made a determination of which of your employees are supervisors, please fill out a checklist for each such employee and forward these checklists to me. The checklist should include the individual's name and rank, position, or job classification. The results will then be reviewed and evaluated by our attorneys to ensure that we are within the law in our determination. If you have any questions, please do not hesitate to get in touch with me.

In response to this memorandum, Mr. Hightower reviewed the activities of police officers and compared their duties with those included on the checklist provided by counsel and incorporated in the Buckner memo. In so doing, he concluded that of the 19 criteria listed, 14 applied to the ranks of sergeant and lieutenant; 16, to that of captain; 18, to those of lieutenant colonel, colonel and assistant director; and all 19, to the Director.

Thereafter, on August 13, 1981, Director Hightower issued the following order to all personnel within the Police Department:

On August 11, 1981, the Board of Commissioners adopted a resolution which stated in part that County Employees who serve in a supervisory capacity are not permitted to join, belong to or participate in the activities of a

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