IBEW Local Union No. 1597 v. Sack

her disbarred from the practice of law in the State of Nebraska,
effective immediately. Respondent shall forthwith comply with
all terms of Neb. Ct. R. § 3-316 of the disciplinary rules,
and upon failure to do so, she shall be subject to punish-
ment for contempt of this court. Accordingly, respondent is
directed to pay costs and expenses in accordance with Neb.
Rev. Stat. §§ 7-114 and 7-115 (Reissue 2007) and Neb. Ct. R.
§§ 3-310(P) and 3-323 of the disciplinary rules within 60 days
after an order imposing costs and expenses, if any, is entered
by the court.
Judgment of disbarment.
international brotherhood of electrical Workers ,
local union no. 1597, appellee , v. bill sack ,
hoWard county commissioner ,
et al ., appellants.
793 N.W.2d 147
Filed December 3, 2010. 	No. S-09-1245.
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 an 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. Commission of Industrial Relations: Administrative Law. The Commission of
Industrial Relations has authority to decide industrial disputes.
3. Labor and Labor Relations. Industrial disputes include not just those disputes
involving wages, terms, and conditions of employment, but also any contro-
versy concerning the association or representation of persons in negotiating,
fixing, maintaining, changing, or seeking to arrange terms or conditions of
employment.
4. Commission of Industrial Relations: Jurisdiction: Pleadings. In order to
invoke the jurisdiction of the Commission of Industrial Relations with regard to
an industrial dispute, any employer, employee, or labor organization must file a
petition with the commission.
5. Labor and Labor Relations: Public Officers and Employees. Under the
Industrial Relations Act, public employers are authorized to recognize employee
organizations for the purpose of negotiating collectively in the determination
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of and administration of grievances arising under the terms and conditions of
employment of their public employees as provided in the act.
6. Commission of Industrial Relations: Labor and Labor Relations: Employer
and Employee. The Commission of Industrial Relations, as well as the National
Labor Relations board and the federal courts, has excluded from bargaining units
so-called confidential employees.
7. Labor and Labor Relations: Employer and Employee: Words and Phrases.
Under the “labor-nexus” test adopted by the National Labor Relations board and
the U.S. Supreme Court, an employee is confidential if he or she has access to
confidential labor relations information of the employer.
8. Labor and Labor Relations: Federal Acts: Statutes. Federal case law regarding
the National Labor Relations Act is relevant in deciding issues under Nebraska’s
Industrial Relations Act.
9. Employer and Employee: Words and Phrases: Appeal and Error. An appel-
late court should utilize a three-part test for determining supervisory status:
employees are statutory supervisors if (1) they hold the authority to engage in
any 1 of the 12 listed supervisory functions; (2) their exercise of such authority
is not of a merely routine or clerical nature, but requires the use of independent
judgment; and (3) their authority is held in the interest of the employer.
Appeal 	from 	the 	Commission 	of 	Industrial 	Relations.
Affirmed in part, and in part reversed.
Vincent Valentino for appellants.
Dalton W. Tietjen, of Tietjen, Simon & boyle, for appellee.
heavican, 	c.J., 	Wright, 	connolly, 	gerrard, 	stephan,
mccormack, and miller-lerman, JJ.
heavican, C.J.
I. INTRoDUCTIoN
The Commission of Industrial Relations (CIR) certified a
bargaining unit as proposed by the appellee, International
brotherhood of electrical Workers, Local Union No. 1597
(IbeW). The appellants, Howard County, Nebraska; the individ-
ual members of the Howard County board of Commissioners;
and the Howard County assessor, clerk, treasurer, and sheriff
(collectively the County), appeal. We affirm in part, and in
part reverse.
II. FACTUAL bACkGRoUND
IbeW filed a petition with the CIR on March 26, 2009, seek-
ing a CIR order requiring an election among certain employees
IbeW LoCAL UNIoN No. 1597 v. SACk 	859
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of Howard County. The purpose of the election was to deter-
mine whether those employees desired to have IbeW exclu-
sively represent them as a collective bargaining agent.
The County filed an answer to IbeW’s amended petition. In
that answer, the County objected to the bargaining unit’s inclu-
sion of the secretary to the county sheriff and the office manager
for the county extension office, as well as the deputy county
assessor, the deputy county clerk, the deputy county treasurer,
and the clerk employees of those offices. The County’s view
was that all the employees at issue except the office manager
for the county extension office were “confidential” employees,
and thus excluded on that basis. The County also alleged that
the office manager and deputy employees were statutory super-
visors and excludable for that reason.
Following the hearing, the CIR entered an order concluding
that all disputed positions should be included in the bargaining
unit and ordered that an election be held. In so doing, the CIR
concluded that none of the positions were “confidential” and
that the office manager and deputy employees were not statu-
tory supervisors. balloting was held, and the bargaining unit
was approved in a 13-to-0 vote. The unit was certified by the
CIR on December 4, 2009. The County appeals.
III. ASSIGNMeNTS oF eRRoR
on appeal, the County assigns, restated, that the CIR erred
in (1) finding that the office manager for the county extension
office and the deputy employees in the offices of the county
assessor, clerk, and treasurer were not statutory supervisors; (2)
finding that the secretary to the county sheriff and the deputy
and clerical employees in the offices of the county assessor,
clerk, and treasurer were not “confidential” employees; and (3)
assigning to the County the burden of proof to show that the
positions in question were supervisory and/or “confidential.”
IV. STANDARD oF ReVIeW
[1] Any order or decision of the CIR may be modified,
reversed, or set aside by an 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
860 	280 NebRASkA RePoRTS

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.1
V. ANALYSIS
1. relevant laW
[2-4] The CIR has authority to decide industrial disputes.2
Industrial disputes include not just those disputes involving
wages, terms, and conditions of employment, but also “any
controversy . . . concerning the association or representation of
persons in negotiating, fixing, maintaining, changing, or seek-
ing to arrange terms or conditions of employment.”3 In order
to invoke the CIR’s jurisdiction with regard to an industrial
dispute, any employer, employee, or labor organization must
file a petition with the CIR.4
[5] Under the Industrial Relations Act, “public employers are
hereby authorized to recognize employee organizations for the
purpose of negotiating collectively in the determination of and
administration of grievances arising under the terms and condi-
tions of employment of their public employees as provided in
the . . . [a]ct.”5 However, “a supervisor shall not be included in
a single bargaining unit with any other employee who is not a
supervisor.”6 A supervisor is defined as
any employee having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, 	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
1 Neb. Rev. Stat. § 48-825(4) (Reissue 2004).
2 Neb. Rev. Stat. § 48-819.01 (Reissue 2004).
3 Neb. Rev. Stat. § 48-801(7) (Cum. Supp. 2010).
4 Neb. Rev. Stat. § 48-811 (Reissue 2004).
5 Neb. Rev. Stat. § 48-816(2) (Reissue 2004).
6 § 48-816(3)(a).
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authority is not a merely routine or clerical nature, but
requires the use of independent judgment.7
[6,7] In addition, the CIR, as well as the National Labor
Relations board and the federal courts, has excluded from
bargaining units so-called confidential employees. The U.S.
Supreme Court set forth the definition of such employees in
NLRB v. Hendricks Cty. Rural Electric Corp.8 According to
Hendricks Cty. Rural Electric Corp.,
“management should not be required to handle labor rela-
tions matters through employees who are represented by
the union with which the [c]ompany is required to deal
and who in the normal performance of their duties may
obtain advance information of the [c]ompany’s position
with regard to contract negotiations, the disposition of
grievances, and other labor relations matters.”9
The Court approved the National Labor Relations board’s
longstanding practice of employing a “labor-nexus” test in
excluding “the narrow group of employees with access to
confidential, labor-relations information of the employer.”10
The CIR has adopted this position, and although the CIR has
been considering whether employees were “confidential” since
1982,11 this court has not previously considered this issue.
The issues presented by this appeal are (1) whether the dep-
uty employees in the offices of the county assessor, clerk, and
treasurer and the office manager for the county extension office
are statutory “supervisors” under § 48-816(3), and (2) whether
the deputy employees in the offices of the county assessor,
clerk, and treasurer; the clerk employees of those offices; and
the secretary to the sheriff are “confidential” employees.
7 § 48-801(10).
8 NLRB v. Hendricks Cty. Rural Electric Corp., 454 U.S. 170, 102 S. Ct.
216, 70 L. ed. 2d 323 (1981).
9 Id., 454 U.S. at 179.
10 Id., 454 U.S. at 177-78.
11 See Civilian Management, Professional and Technical Employees Council
of the City of Omaha, Inc. v. City of Omaha, 6 C.I.R. 187 (1982).
862 	280 NebRASkA RePoRTS

2. deputy employees are statutory supervisors
on appeal, the County contends that because deputies have
the authority to perform the duties of the elected officeholder12
and the elected officeholder is a supervisor, a deputy should
also be considered a supervisor.
[8,9] The definition of “supervisor” in Nebraska’s Industrial
Relations Act is substantially identical to that of “supervi-
sor” under the National Labor Relations Act.13 And we have
indicated that federal case law regarding the National Labor
Relations Act is relevant in deciding issues under Nebraska’s
Industrial Relations Act.14 The federal courts utilize a three-part
test for determining supervisory status:
employees are statutory supervisors if (1) they hold the
authority to engage in any 1 of the 12 listed supervisory
functions, (2) their “exercise of such authority is not of a
merely routine or clerical nature, but requires the use of
independent judgment,” and (3) their authority is held “in
the interest of the employer.”15
(a) Deputy employees Granted Supervisory
Authority by Statute
The record indicates that none of the deputy employees at
issue actually exercise supervisory authority. However, the
eighth Circuit has noted that “the actual exercise of the enu-
merated power is irrelevant so long as the authority to do so is
present.”16 And we conclude that the authority is present with
respect to these deputies.
Nebraska statutes authorize the appointment of deputies
by elected officials and further provide those deputies with
12 Neb. Rev. Stat. §§ 23-1301.01 (county clerk) and 23-1601.02 (county
treasurer) (Reissue 2007). See, also, Neb. Rev. Stat. §§ 23-1115 (Reissue
2007) and 25-2219 (Reissue 2008).
13 Compare § 48-801(10) with 29 U.S.C. § 152(11) (2006).
14 Nebraska Pub. Emp. v. Otoe Cty., 257 Neb. 50, 595 N.W.2d 237 (1999).
15 NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, 713, 121 S.
Ct. 1861, 149 L. ed. 2d 939 (2001).
16 Beverly Enterprises v. N.L.R.B., 148 F.3d 1042, 1045 (8th Cir. 1998).
IbeW LoCAL UNIoN No. 1597 v. SACk 	863
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the authority to act in the absence of the elected official.17 In
particular, § 25-2219 provides that “[a]ny duty enjoined by
this code upon a ministerial officer, and any act permitted
to be done by him, may be performed by his lawful deputy.”
And under Neb. Rev. Stat. § 23-1111 (Reissue 2007), which
provides that “county officers in all counties shall have the
necessary clerks and assistants,” an elected official has the
power to set the terms and conditions of employment in his or
her office.18
Providing more support for the County’s position is the
fact that at least with respect to the deputy employees in the
offices of the county clerk and treasurer, those deputies are
required under state law to take the same oath as the elected
official.19 Moreover, any person holding the title of deputy can
be removed from his or her deputy position without cause,20
something that can be inconsistent with the grievance proce-
dures often accompanying membership in a union.
For these reasons, we conclude that the deputies are autho-
rized under Nebraska law to exercise supervisory authority.
(b) Deputy employees exercise Independent Judgment
We further conclude that when exercising these powers in
the absence of the elected official, a deputy is exercising inde-
pendent judgment, just as the elected official would. We cau-
tion, however, that the elected official is still in ultimate control
of his or her office, and nothing in this opinion should be read
to limit the power of the elected official with respect to his or
her office.
(c) Deputy employees Act in Interest of Their employers
Finally, we note that there is no dispute that the deputy
employees act in the interest of the County and of their particu-
lar elected officials.
17 See §§ 23-1301.01, 23-1601.02, 23-1115, and 25-2219.
18 See Sarpy Co. Pub. Emp. Assn. v. County of Sarpy, 220 Neb. 431, 370
N.W.2d 495 (1985).
19 See §§ 23-1301.01 and 23-1601.02.
20 Neb. Rev. Stat. § 23-2514 (Reissue 2007).
864 	280 NebRASkA RePoRTS

because we conclude that the deputy assessor, deputy clerk,
and deputy treasurer are authorized as statutory supervisors,
those positions cannot be included in the same bargaining unit
as nonsupervisory positions. We therefore find merit to the
County’s assignment of error as to the deputies and reverse
the CIR’s decision certifying the bargaining unit as contrary
to law.
3. county extension office manager
is not statutory supervisor
Though the deputy positions are supervisory positions, we
do not find the same to be true for the office manager for the
county extension office. Unlike the employees in the deputy
positions, there are no statutes authorizing any powers, super-
visory or otherwise, to any employees of the county extension
office. And the record is clear that the person holding this
position does not exercise any supervisory powers. In fact, in
this case, this position is currently a part-time position and its
occupant is the sole county employee in the office. Any other
extension employee is a University of Nebraska employee, over
whom the office manager has no authority. We therefore con-
clude that this position is not a supervisory position and that
the CIR’s order including it in the bargaining unit should be
affirmed. This portion of the County’s first assignment of error
is without merit.
4. clerk employees and secretary to county sheriff
are not “confidential” employees
Finally, 	we 	turn 	to 	the 	question 	of 	whether 	particular
employees are “confidential” employees. because we have
already concluded that the deputy positions should be excluded
from the bargaining unit, we need not address whether those
employees are “confidential.” And the County does not argue
that the office manager of the county extension office is a con-
fidential employee. Thus, we must determine only whether the
clerk employees of the assessor, clerk, and treasurer, as well
as the secretary to the sheriff, are “confidential” employees. In
examining the record, we conclude that none of these employ-
ees are “confidential.”
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In determining whether an employee is “confidential,” we
adopt and apply the “labor-nexus” test utilized by the U.S.
Supreme Court in Hendricks Cty. Rural Electric Corp.21 Under
this test, those individuals in the “narrow group of employees
with access to confidential labor relations information of the
employer”22 are considered “confidential” employees. because
of this knowledge, such “confidential” employees are properly
excluded from a bargaining unit.
on appeal, the County contends that the sheriff’s secretary
and the clerk employees all work in a confidential capacity
with respect to their particular elected official and have “poten-
tial access to confidential information that is labor-related and
may not be known to [IbeW].”23 As was noted above, the U.S.
Supreme Court has indicated that “‘management should not
be required to handle labor relations matters through employ-
ees who are represented by the union . . . who in the normal
performance of their duties may obtain advance information
of the [c]ompany’s position with regard to . . . labor relations
matters.’”24 An examination of the record does not support the
County’s assertion.
Rather, according to all of the evidence in the record, only
the elected official has access to confidential labor-related
information. All three clerk employees, as well as the sheriff’s
secretary and the deputies in each office, testified that only the
elected official had such information and that such informa-
tion was kept locked when not being utilized by the official. In
addition, the county assessor and sheriff also testified that their
respective employees did not have access to any labor-related
materials. There was no testimony presented suggesting that
the clerk employees or the secretary to the sheriff had access to
such labor-related materials.
21 See NLRB v. Hendricks Cty. Rural Electric Corp., supra note 8.
22 Id., 454 U.S. at 178.
23 brief for appellant at 34.
24 NLRB v. Hendricks Cty. Rural Electric Corp., supra note 8, 454 U.S. at
179.
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We therefore affirm the decision of the CIR that none
of these employees are “confidential.” The County’s second
assignment of error is without merit.
5. burden of proof
Finally, the County argues that in its order certifying IbeW’s
proposed bargaining unit, the CIR impermissibly shifted the
burden of proof when it noted, with respect to whether the
employees were confidential, that the County had failed to
meet its burden to show that the positions were confidential.
We agree that the CIR has traditionally placed the burden
of proof on the union in cases where the employer seeks to
exclude certain positions from a bargaining unit.25 And we
agree that in this case, the CIR noted in its order that the
County had failed to meet its burden to show that the employ-
ees were “confidential.”
To the extent that this was error, however, it was harmless.
The CIR specifically noted that there was no evidence in the
record to show that the positions were confidential. Thus,
regardless of whether the burden was placed on IbeW to show
that the positions were not confidential or on the County to
show that the positions were confidential, the result would be
the same.
The County’s third assignment of error is without merit.
VI. CoNCLUSIoN
We conclude that the deputy employees are considered statu-
tory supervisors. We therefore reverse the CIR’s decision with
respect to the deputies and otherwise affirm the decision of
the CIR.
affirmed in part, and in part reversed.
25 Metro. Technical Community College Educ. Assoc. v. Metropolitan
Technical Community College, 3 C.I.R. 141 (1976).
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