A threshold issue in labor relations is which grouping of employees constitutes an appropriate bargaining unit.  Those who are in the bargaining unit will be represented by the union.  This question must be addressed by both public and private sector employers.  In Ohio, particularly in the area of law enforcement personnel, there are unique rules applicable to public employees.

Late last week, the Ohio State Employment Relations Board (SERB) demonstrated just how far-reaching state law can be in including law enforcement personnel in a bargaining unit.  A union sought recognition as the representative of captains in a police department.  There were two captains, both reporting to the Chief of Police.  The captains attended bargaining sessions as representatives of the public employer.  They acted as the Chief of Police when the Chief was absent.  They attended disciplinary conferences.

Despite these facts, SERB held that the bargaining unit the union sought — all police captains — was an appropriate bargaining unit.  SERB noted that, while the captains participated in a number of the duties noted above, the Chief exercised the real authority.  For example, in negotiations, the captains simply gathered information for the Chief.  Even when absent, the Chief was always reachable by Blackberry.  Indeed, lower ranking members of the police force, including sergeants and lieutenants served as Acting Chief.  And in disciplinary matters, the Chief was ultimately responsible for determining discipline.

While the public employer attempted to exclude the captains as "confidential" employees, "management level" employees, or "supervisors," SERB rejected each argument.  When the details of the employees duties were examined, it became clear that the real power, exercised on behalf of the employer, resided in the Chief, and not in the captains.  Accordingly, the captains could be in a bargaining unit, and represented by the union.

The SERB decision is an important reminder that titles do not matter, actual duties do.  Employers that believe certain employees are representatives of management should periodically review the duties of those individuals to ensure that they exercise the appropriate level of responsibility on a regular basis.