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STATE LAW ENFORCEMENT BARGAINING COUNCIL, APPELLEE,
v.
STATE OF
OPINION
OF THE
Filed May 22, 2007, No. A-05-693
Appeal from the
Jon Bruning,
Attorney General, and Jodi M. Fenner for appellant.
Vincent Valentino, of
Angle, Murphy, Valentino & Campbell, P.C., for appellee.
SIEVERS and
SIEVERS, Judge.
This is an appeal from
a judgment of the Commission of Industrial Relations (CIR) ordering the
certified bargaining unit for employees of the State Law Enforcement Bargaining
Council (SLEBC) to be modified to include the positions of staff supervisor and
conservation officer supervisor, employed by the Game and Parks Commission
(GPC). The State assigns as error the CIR's finding
that the staff supervisor and conservation officer supervisor positions were
not statutory supervisors and that they should be included with the other state
employees in the State Law Enforcement Bargaining Unit pursuant to Neb. Rev.
Stat. § 81-1373(1)(g) (Cum. Supp. 2006). We find that the CIR erred in not
finding that the contested positions were statutory supervisors. Therefore, we
reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The SLEBC filed a
petition on October 13, 2004, seeking an order to clarify or amend a collective
bargaining unit comprising state law enforcement employees holding powers of
arrest, as set forth in § 81-1373(1)(g). The State filed an answer on November
3, 2004, asserting as an affirmative defense that the six contested positions
in the GPC are supervisors under Neb. Rev. Stat. § 48-816(3) (Reissue 2004) and
therefore should be excluded from the proposed bargaining unit.
A preliminary proceeding
was held on November 24, 2004. The CIR ordered that a pretrial conference would
be held on January 11, 2005, and that said conference would be "conducted
in accordance with Rule 22 and the parties shall fully comply with the
provisions set forth therein." The State submitted an amended exhibit list
to the SLEBC, and the State filed the amended exhibit list with the CIR on
January 10.
At the pretrial
conference on January 11, 2005, the State offered exhibits 12 through 164 and
the SLEBC made no objections to the contents of the exhibits. The parties
stipulated that the issues were (1) "[w]hether
the six Conservation Officers/Supervisors should be included with the other
state employees in the State Law Enforcement bargaining unit pursuant to . . .
§ 81-1373(g) or are these Conservation Officers/Supervisors as defined under
NEB. REV. STAT. § 48-801(9)" and therefore "should be excluded from
the Law Enforcement bargaining unit pursuant to . . . § 48-816(3)(a)" and
(2) "[w]hether the Conservation
Officers/Supervisors are considered `similar classes' to be included with the
[Nebraska State Patrol] sergeants in the bargaining unit."
The CIR held a hearing
on February 11 and 22, 2005. The State offered exhibits 12 through 164, which
were received without objection, and the SLEBC offered exhibits 1 through 11
and 165, which were also received.
The evidence reveals
that in February 2003, the GPC attempted to obtain a reclassification of the
conservation officer supervisors to raise their pay grade. Each of the
conservation officer supervisors completed a "Comprehensive Position
Questionnaire" (CPQ), had input from upper management, and signed the CPQ.
At the suggestion of upper management, the CPQ's were
amended to include information related to direct expenditure approval and
financial responsibilities of the conservation officer supervisors. The
conservation officer supervisors testified that at the time they completed the CPQ's, they believed that their CPQ's
were appropriate and truthful. In May 2003, the State's personnel division
denied the conservation officer supervisors and the staff supervisor a change
in pay grade. In October 2004, the SLEBC filed a petition to clarify or amend
the bargaining unit. The conservation officer supervisors and the staff
supervisor are now contending that they do not have as much supervisory
responsibility as they did in 2003, even though there is no evidence that the
duties of the positions changed or that the positions lost any authority as of
the hearing in February 2005.
Staff Supervisor.
Dana Miller currently
holds the position of staff supervisor. The record reflects that her duties
include the following: coordinating homeland security for the GPC; training new
conservation officers, who are employed at the rate of approximately one new
trainee per year, for a 6-month period; filling in as an interim district
supervisor; performing an evaluation of the training employee; keeping track of
certifications of all the conservation officers and conservation officer
supervisors, including setting up training meetings; purchasing items without a
purchase order in the amount of $300 or less; conducting background checks; and
assisting in training exercises as an evaluator.
In February 2003,
Miller completed a CPQ. Regarding the staff supervisor's position's purpose,
Miller wrote:
As the Staff Supervisor my
essential purpose is to plan, coordinate, direct and participate in law
enforcement training . . . to include scheduling and documenting trainer
certification, organizing and preparing in-service training [and] act as
interim district supervisor, supervising work activity, work hours, reporting
processes, coordinating work assignment, special enforcement details and
evaluating Officer job performance . . . .
Miller also wrote that
on a daily basis, she supervises and coordinates all training activities across
the state with trainers and field officers, assigns leave and days off, and reviews
for accuracy all data entry process, including written activity, expenditure
reports, case reports, arrest records, racial profiling reports, invoice logs,
and purchase recommendations. On cross-examination, Miller admitted that her
statement in her CPQ that her "supervisory duties require independent
decision making" was truthful. Miller also indicated in the CPQ that she
would not describe her supervisory duties as "routine" or
"clerical" or as a "lead worker." In the CPQ, Miller listed
17 conservation officers by name that she directly supervises either full time
or part time, the majority of which have job titles such as
"instructor" or "field training officer."
Miller's 2004
performance plan and evaluation as a staff supervisor included many of the same
duties that Miller self-reported in the CPQ, acknowledging the fact that 50
percent of Miller's time should be spent in planning, coordinating,
supervising, directing, and participating in law enforcement training functions
and that one of her duties is to serve as an interim or fill-in district
supervisor, which included directing work performance, making assignments, and
initiating corrective actions.
Contrary to Miller's
statement in the CPQ and the duties listed in the performance plan, Miller
testified, "[A]lthough my title is staff
supervisor, I basically make recommendations, and every decision I make . . .
the majority of the decisions have to be approved by [administration] before I
can initiate those actions." Nevertheless, during cross-examination, in
response to the question whether the staff supervisor duties require
independent decision making, Miller admitted that such was a true statement.
The SLEBC presented
evidence that in November 2004, following the U.S. Department of Labor's
revisions to overtime regulations concerning "white collar"
exemptions to the federal Fair Labor Standards Act, the staff supervisor
position became nonexempt, because Miller did not meet the requirements of the
"Administrative Exemption" test. A finding that the position of staff
supervisor is nonexempt for purposes of the Fair Labor Standards Act does not
dictate whether the position is or is not a "supervisor" under Neb.
Rev. Stat. § 48-801(9) (Reissue 2004).
Conservation Officer Supervisors.
It is undisputed that
the director of the GPC makes the final determinations on hiring, promotions,
and disciplinary actions. Nevertheless, the conservation officer supervisors
all admitted in their testimony that they perform supervisory duties. Their
testimony reflects that the responsibilities of the conservation officer
supervisors include the following supervisory duties: give conservation
officers guidance and direction when working side by side with them; review the
weekly reports and the 28-day reports, which document the conservation
officers' activities, and ensure that the reports are mathematically correct
and consistent with the season and the responsibilities associated with that
season; counsel the conservation officers if the hours reported in the weekly
reports and 28-day reports are not consistent with the season and
responsibilities associated with that season; authorize overtime typically not
to exceed 1 to 3 hours of duty on a given day but, in the event of an
emergency, authorize more overtime without approval from upper management;
perform annual performance evaluations of the conservation officers, which
evaluations are discussed with and approved by the conservation officer
supervisors' respective assistant division administrators; meet with the
conservation officers to review the content of the performance evaluations;
authorize expenditures without a purchase order for $300 or less; disseminate
information to the conservation officers given to the conservation officer supervisors
during their quarterly meetings with their supervisors, the assistant division
administrators; assign conservation officers to special details within their
districts, including the time, place, and objective of such details, i.e.,
setting a decoy deer during deer season or checking overbag
fish limits during the summer; approve leave or time off; maintain adequate
staffing; mitigate grievances brought by conservation officers; answer
questions about regulations, changes, or proposed programs; oversee and have
responsibility for the equipment of the conservation officers; and document
work performance issues and recommend remedial programs or training when
necessary. Conservation officer supervisors also perform the same tasks as the
conservation officers, including the following tasks: write tickets,
prepare and present radio and television programs and maintain contact with
newspapers and local media, testify in court, use confidential informants, and
perform various other field activity duties.
Duane Arp's performance
plan from January 5, 2004, to January 5, 2005, set forth the following as his
primary duties: "[p]lan, coordinate, supervise,
direct and participate in all conservation law enforcement activities in
assigned district" and "[e]ffectively
supervise the employees under his/her supervision." In direct testimony,
Arp testified that he directs the conservation officers in his district and
provides direction and guidance to the subordinates. Arp succinctly wrote in
his CPQ that his position's purpose "is the planning, supervising and
directing of district law enforcement functions to include, work activities,
schedules, work hours, officer evaluations, reporting process, equipment
inventories, and allocation of personnel to ensure adequate coverage . . . of
eleven full time conservation officers." Arp indicated in his CPQ that on
a daily basis, he supervises and coordinates the law enforcement activities of
all 11 conservation officers in his district. Arp admitted in his CPQ that his
supervisory duties require the use of independent judgment and would not be
described as routine or clerical. Arp also wrote the following in his CPQ:
Due to the nature of duties
of conservation officers and the importance of self initiative and flexibility
it is crucial that the law enforcement supervisor have the flexibility and
capabilities to analyze problems and complaints without guidance or prior
approval from the next level of administration. I am the only supervisory
position in the chain of command between 11 field officers and administration.
Contrary to James
Zimmerman's testimony at the hearing that a lot of his work reviewing reports,
"weeklies," and "monthlies" was routine or clerical in
nature, Zimmerman indicated in his CPQ that his supervisory duties require the
use of independent judgment, that such duties were not routine or clerical, and
that he was not a lead worker. Zimmerman also wrote in his CPQ that his
position's purpose was to "[s]upervise 9 state
certified Conservation Officers in a 16 county area," as well as to deploy
personnel, evaluate job performances of subordinates, oversee equipment issued
to officers within the district, plan daily operations within the district, and
review and approve all work-related documents. Zimmerman noted that his daily
tasks include supervising and coordinating all district law enforcement
activities over a multicounty area with district field conservation officers
and supervising and documenting individual conservation officers' work
performance. Zimmerman also commented in the CPQ that his position as a
supervisor requires him to make "independent decisions" in regard to
the overall work activities within assigned districts and that the number of
independent decisions had increased because of the high ratio of subordinates
to supervisor and the expansion of the geographic areas.
Thomas Zimmer testified
that his nonclerical supervisory duties include
discussing work activities with the conservation officers in the field. Zimmer
also testified that during the past year, he had performance issues with one of
his conservation officers and Zimmer counseled this conservation officer.
Zimmer wrote in his CPQ that his position's purpose was to
[s]upervise
10 field Conservation Officers, two staff assistants and the overall law
enforcement operations of the district which includes 23 counties . . . . I
supervise the work activities, work hours, reporting process, maintain district
equipment inventory, coordinate work assignments and special law enforcement
projects, evaluate job performance of subordinates, [and] allocate personnel to
ensure adequate coverage within the district . . . .
Zimmer indicated in his
CPQ that his supervisory duties required the use of independent judgment and
were not routine or clerical in nature. Zimmer also wrote that he makes
"decisions of a high level supervisor on short notice and without
consulting administration." In Zimmer's March 2004 to March 2005
performance plan, his listed duties included planning, coordinating,
supervising, directing, and participating in all law enforcement activities, as
well as "effectively" supervising the employees under his
supervision.
Jerry Pecha wrote in his CPQ that he is "directly
responsible for the planning, supervising and coordinating of all law
enforcement functions of eight state and deputy federally credentialed
conservation officers." Pecha indicated that his
supervisory duties require the use of independent judgment, that such duties
were not routine or clerical, and that he did not consider his position to be a
lead worker. Pecha commented in his CPQ that he is
"responsible for making independent decisions in a short time frame
without input from higher ups."
Roger Thompson wrote in
his CPQ that his position's purpose was to supervise up to 10 conservation
officers by monitoring and documenting work performance; establishing work
schedules and making assignments; monitoring personal appearance and adherence
to statutes, regulations, policies, and other guidelines; initiating corrective
or disciplinary actions; and inspecting property and equipment assigned to
personnel under his supervision. Thompson also commented in his CPQ that a
"Conservation Officer Supervisor has to be adaptable to so many situations
and make quick decisions without guidance or approval from
administration."
CIR's Order.
On May 3, 2005, the CIR
filed its order finding that neither the position of conservation officer
supervisor nor the position of staff supervisor was a statutory supervisor.
Regarding the staff supervisor, the CIR found that her supervisory duties were
routine and clerical in nature:
Staff Supervisor . . .
Miller runs the day-to-day operations of the training of new employees for the
[GPC] Law Enforcement Division. However, this function of her job is only a
very small portion of her duties. . . . Miller rarely has face-to-face contact
with the new employees in training. While she does perform evaluations of the
training employees, those evaluations have distinct parameters for her to
follow in assessing each new hire's abilities. Each evaluation is thoroughly
and independently reviewed and often changed by senior management. She does not
effectively recommend actions for any of the new employees in training. . . .
Miller does not possess the authority to hire, fire, suspend, lay-off, recall
or promote.
. . . Miller is responsible
for managing the proper completion of training and updating certifications.
Although she manages this function, her function is routine and clerical in
nature.
Regarding the
conservation officer supervisors, the CIR found that the conservation officer
supervisors did not possess the authority to hire, fire, suspend, lay off,
recall, or promote and that they often work side by side with the conservation
officers and give the conservation officers "guidance and direction in
their work." The CIR found that "[t]o the extent that Conservation
Officer Supervisors direct the other Conservation Officers, their direction is
routine in nature." The CIR further found:
The Conservation Officer
Supervisor[s'] main function is to disseminate information to their local
Conservation Officers, most notably because of the great distance
geographically between the headquarters and the satellite district locations.
These Conservation Officer Supervisors relay instructions, follow procedures,
conform to contractual language, and perform the routine clerical work of
double-checking the math in weekly schedules and in work activity reports.
While the Conservation Officer Supervisors do perform evaluations of
Conservation Officers, those evaluations have distinct parameters for them to
follow in assessing the Conservation Officer's work. Each evaluation is
thoroughly and independently reviewed and changed by senior management. To the
extent that the Conservation Officer Supervisors direct other employees, their
direction is routine in nature.
The CIR concluded that the conservation
officer supervisors are not statutory supervisors.
After finding that the
conservation officer supervisors are not statutory supervisors, the CIR
addressed the "similar classes" issue and found that under §
81-1373(1)(g), "the term `game warden' refers to
the work that is actually performed by the Conservation Officers and the
Conservation Officer Supervisors, even though the term `game warden' is not
specifically included in the organizational structure" of the GPC. The CIR
found that because of its finding that conservation officer supervisors and staff
supervisor are not statutory supervisors, the "second sentence of §
81-1373(1)(g) has no application and the [CIR] need not construe the extent of
any supervisory exception contained therein." Accordingly, the CIR
included the staff supervisor and the conservation officer supervisors in the
bargaining unit set forth in § 81-1373(1)(g). The
State now appeals.
ASSIGNMENTS OF ERROR
The State asserts that
the CIR erred (1) both factually and as a matter of law, when it found that the
positions of staff supervisor and conservation officer supervisor were not
statutorily supervisory under § 48-801(9) and that the positions should
therefore be included in the Law Enforcement Bargaining Unit set forth in §
81-1373(1)(g); (2) both factually and as a matter of law, when it admitted and
considered the Fair Labor Standards Act determination of exemption of Miller
and further determined that Miller is an "hourly employee" and not a
supervisor; (3) when it disregarded its own rules by "declining to hold as
true the facts stated in exhibits 12 through 164 pursuant to Rule 22,"
which exhibits established conclusively that the conservation officer
supervisors and the staff supervisor responsibly directed conservation
officers; (4) when it incorrectly relied upon a repealed version of §
81-1373(1)(g) in determining that conservation officer supervisors are of a
"similar class" to "game wardens," because § 81-1373(1)(g)
(Reissue 1999) was amended by 2003 Neb. Laws, L.B. 85, to change the reference
to "game wardens" to more specifically reference "conservation
officers"; and (5) when it found that the positions of investigative
services sergeant and conservation officer supervisor were
"comparable" or of a "similar class."
STANDARD OF REVIEW
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: if the commission acts without
or in excess of its powers, if the order was procured by fraud or is contrary
to law, if the facts found by the commission do not support the order, and if
the order is not supported by a preponderance of the competent evidence on the
record considered as a whole.
ANALYSIS
The first question before the CIR was whether the
conservation officer supervisors and the staff supervisor should be included
with the other state employees in the State Law Enforcement Bargaining Unit
pursuant to § 81-1373(1)(g) (Cum. Supp. 2006) or
whether these positions are supervisors as defined under § 48-801(9) and
therefore should be excluded from the Law Enforcement Bargaining Unit pursuant
to § 48-816(3)(a).
Under § 81-1373(1)(g),
an appropriate bargaining unit is a law enforcement unit composed of employees
holding powers of arrest, including Nebraska State Patrol officers and
sergeants, conservation officers, fire marshal personnel, and similar classes.
Sergeants, investigators, and patrol officers employed by the Nebraska State
Patrol as authorized in section 81-2004 shall be presumed to have a community
of interest with each other and shall be included in this bargaining unit notwithstanding
any other provision of law which may allow for the contrary.
Section 48-801(9)
provides that a supervisor is any employee 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 a merely
routine or clerical nature, but requires the use of independent judgment.
The language in §
48-816(3)(a) excludes "supervisors" from
being in a single bargaining unit with any other employee who is not a
supervisor unless otherwise provided. This language in § 48-816(3)(a) "unequivocally declares that except as otherwise
provided, a supervisor shall not be included in a single bargaining unit with
any other employee who is not a supervisor." PLPSO v.
Papillion/LaVista School Dist., 252
Regarding the staff
supervisor position's supervisory duties, Miller testified that her duties
include training new conservation officers, who are employed at the rate of
approximately one new trainee per year, and that such training lasts for 6
months. Miller admitted that she performs an evaluation of the training
employee. Miller testified that she sets up training meetings for conservation
officers. Miller admitted that she assists in training exercises as an
evaluator. Miller also acts as an interim district supervisor when needed.
Miller conducts the background investigations on eligible candidates for hire,
which necessarily requires a certain level of confidentiality. Miller sets up
training meetings and conducts training sessions with other trainers. This
position clearly has supervisory responsibilities. Given that Miller admitted
at the hearing that her statements in her CPQ were truthful, we quote from her
own words about the essential purposes of her position:
As the Staff Supervisor
my essential purpose is to plan, coordinate, direct and participate in law
enforcement training . . . to include scheduling and documenting trainer
certification, organizing and preparing in-service training [and] act as
interim district supervisor, supervising work activity, work hours, reporting
processes, coordinating work assignment, special enforcement details and
evaluating Officer job performance . . . .
Also, in her CPQ,
Miller admitted that her supervisory duties require independent judgment and
that such duties were not routine or clerical in nature. Without a drastic
change in the staff supervisor's supervisory duties and responsibilities, which
is not shown by the record, Miller's statements regarding her supervisor duties
in 2003 are reflective of her duties at the time of the hearing in 2005.
With respect to the
conservation officer supervisors, they admit that they have supervisory duties.
The CIR found that such duties were routine and clerical and did not require
independent judgment. As we detailed above, it is clear that the conservation
officer supervisors' duties and responsibilities include the following: giving
conservation officers guidance and direction when working side by side with
them; reviewing the weekly reports and the 28-day reports, which document the
conservation officers' activities, and ensuring that the reports are
mathematically correct and consistent with the season and the responsibilities
associated with that season; counseling the conservation officers if the hours
reported in the weekly reports and 28-day reports are not consistent with the
season and responsibilities associated with that season; authorizing overtime
typically not to exceed 1 to 3 hours of duty on a given day but, in the event
of an emergency, authorizing more overtime without approval from upper
management. The conservation officer supervisors also perform annual
evaluations of the conservation officers, which evaluations are discussed with
and approved by the conservation officer supervisors' respective assistant
division administrators located in
In addition to the
staff supervisor's admission in her CPQ, we find the admissions from all of the
conservation officer supervisors in their CPQ's to be
extremely persuasive, because their CPQ's were
prepared when the issue involved in this proceeding was not yet "on the
table." The conservation officer supervisors admitted during the hearing
that they were truthful in the CPQ's. While the SLEBC
alleged that the CPQ's were "largely
inaccurate" due to the upper management's suggestions and revisions, we do
not agree with the SLEBC's allegation that the CPQ's failed to represent the true nature and
responsibilities of the conservation officer supervisor and staff supervisor
positions. Brief for appellee at
17.
In the CPQ's, the conservation officer supervisors admitted that
they have numerous supervisory duties and that such duties require independent
judgment. Arp wrote that "it is crucial that the law enforcement
supervisor have the flexibility and capabilities to analyze problems and
complaints without guidance or prior approval from the next level of
administration. I am the only supervisory position in the chain of command
between 11 field officers and administration." Zimmer wrote that he makes
"decisions of a high level supervisor on short notice and without consulting
administration" and that he supervises 10 field conservation officers, two
staff assistants, and "the overall law enforcement operations of the
district which includes 23 counties." Zimmer also wrote, "I supervise
the work activities, work hours, reporting process, maintain district equipment
inventory, coordinate work assignments and special law enforcement projects,
evaluate job performance of subordinates, [and] allocate personnel to ensure
adequate coverage within the district . . . ." Pecha
commented in his CPQ that he is "responsible for making independent
decisions in a short time frame without input from higher ups." Thompson
wrote that his position's purpose was to supervise up to 10 conservation
officers "by monitoring and documenting work performance, establishing
work schedules and making assignments, monitoring appearance and adherence to
statutes, regulations, policies and other guidelines, initiating corrective or
disciplinary actions, [and] inspecting property and equipment assigned to
personnel under my supervision." Thompson commented in his CPQ that a
"Conservation Officer Supervisor has to be adaptable to so many situations
and make quick decisions without guidance or approval from
administration." All of the conservation officer supervisors indicated in
their CPQ's that their supervisory duties are neither
routine nor clerical in nature and that they considered themselves more of a
supervisor than a "lead worker." Based upon the record as a whole, we
find that the conservation officer supervisors are, in fact, statutory
supervisors. The mere fact that they also do GPC field conservation work does
not mean that they are not supervisors.
While the CIR concluded
that the conservation officer supervisors and the staff supervisor are not
statutory supervisors, we find that such a finding is not supported by a
preponderance of the competent evidence on the record considered as a whole.
Finally, we address the
CIR's finding that conservation officer supervisors
are comparable to Nebraska State Patrol sergeants and therefore exempted from
the exclusion for supervisors provided under § 81-1373(1)(g). We first note
that the CIR erred in relying on a repealed version of the statute--§ 81-1373(1)(g) (Reissue 1999), which was amended by 2003 Neb. Laws,
L.B. 85. We use the current version, § 81-1373(1)(g)
(Cum. Supp. 2006), which provides a bargaining unit for
Law Enforcement, which
unit is composed of employees holding powers of arrest, including Nebraska
State Patrol officers and sergeants, conservation officers, fire marshal
personnel, and similar classes. Sergeants, investigators, and patrol officers
employed by the Nebraska State Patrol as authorized in section 81-2004 shall be
presumed to have a community of interest with each other and shall be included
in this bargaining unit notwithstanding any other provision of law which may
allow for the contrary.
Under the current
version of § 81-1373(1)(g), conservation officer
supervisors are not specifically mentioned. The precise and unambiguous
language of § 81-1373(1)(g) provides that "[s]ergeants,
investigators, and patrol officers employed by the Nebraska State Patrol,"
who shall be presumed to have a community of interest with each other, shall be
included in the same bargaining unit notwithstanding any provision of the law
to the contrary. Thus, except for the specific exemption under § 81-1373(1)(g) relating to the State Patrol within the Law Enforcement
Bargaining Unit, supervisors are excluded by statute under § 48-816(3)(a).
Whether conservation officer supervisors are within the purview of § 81-1373(1)(g) is controlled by the rule of statutory construction
"expressio unius est exclusio alterius"
(the expression of one thing is the exclusion of another). See PLPSO v.
Papillion/LaVista School Dist., 252
In view of the result
we reach, it is unnecessary to consider the State's assignment of error
alleging that the CIR erred when it disregarded its own rules by
"declining to hold as true the facts stated in exhibits 12 through 164
pursuant to Rule 22."
CONCLUSION
We find that the
conservation officer supervisors and the staff supervisor are statutory
supervisors, given their supervisory responsibilities over the conservation
officers. Because the contested positions are statutory supervisors, we find
that the CIR erred when it included such positions in the Law Enforcement
Bargaining Unit set forth in § 81-1373(1)(g).
REVERSED.