11 CIR 171 (1991)


| NO. 278
Petitioner, |
Respondent. |


For the Petitioner: Mary Rhoades, pro se

1002 South 27th St.

Omaha, NE 68105

For the Respondent: M. H. Weinberg

Weinberg & Weinberg, P.C.

8901 Indian Hills Drive, Suite 1

Omaha, NE 68114

Before: Judges V. Moore, Flowers, Kratz


This matter comes before the Commission upon the request of International Union of Operating Engineers, Local No. 571 ("Union") for a hearing upon the issues raised in its Answer to Petition for Decertification filed May 14, 1991. A hearing was held on May 31, 1991.

The Union argues that the petition should be dismissed because it is insufficient. The petition, requesting a decertification election of the Union, was filed by Mary Rhoades, an employee of the Douglas County Hospital.

Ms. Rhoades subsequently filed two amended petitions with the Commission. In the original petition and in the first amended petition, petitioner did not name the correct union. However, she named the correct bargaining unit, and it is clear that she contemplated filing the petition against the union that represented this bargaining unit.

The Commission finds that the Amended Petition is in proper form and is sufficient. Although the first petition may be demurrable, the deficiencies were corrected in the two subsequent petitions, and pursuant to Neb. Rev. Stat. section 25-849 (1989) a petition can be amended without leave at any time before an answer is filed. In addition, neither amendment enlarges the character or size of the bargaining unit.

The Union also argues that the petition was not timely filed pursuant to CIR Rule 9. Rule 9G states that a petition for decertification "may only be filed between the 120th and 60th days preceding the termination of an existing agreement. . . ." The period from the 60th day to the date the agreement expires is called the "insulated period." "Decertification petitions are not allowed during the insulated period so that the existing representative and the employer may negotiate a new agreement free from the rivalry and uncertainty caused by a challenge from a competing bargaining representative." Central Comm. College Educ. Assoc. v. Central Neb. Educ. Assoc. , 8 CIR 151, 153 (1985).

Respondent's motion to dismiss is overruled because the petition was timely filed. The current labor agreement between Douglas County Hospital and the Union is valid through June 30, 1991. Ms. Rhoades filed her first petition on April 30, 1991. In the case at bar, a petition for decertification is timely filed pursuant to Rule 9 if it is filed no later than May 1, 1991. See In Re: South Sioux City Municipal Electrician's Assoc. , 3 CIR 68, 69 (1975) (stating that "[p]etitions for decertification must be filed more than 60 days prior to the expiration of an agreement"). Although the amended petitions, filed May 2, 1991 and May 9, 1991, are outside the window period, it is the filing date of the initial petition that is used to calculate compliance with Rule 9. See Nebraska Assoc. of Public Employees, Local 61 of the AFSCME v. State of Nebraska , CIR Case 811 (Order entered June 25, 1991).

The Union points out in its answer that service upon it was not perfected until after the window period expired. Again, the Commission finds no merit in this argument. The controlling date is the filing date of the initial petition. We obtained jurisdiction in this case on April 30, 1991. See Central Comm. College Educ. Assoc. v. Central Nebr. Educ. Assoc ., 8 CIR 151 (1985); Douglas County Health Dep't Employees Assoc. v. County of Douglas , 229 Neb. 301, 427 N.W.2d 28 (1988).

At the hearing, the Union requested that the Commission's decision in this case be determined en banc. The Commission now rules that the request for an en banc decision is denied.


1.That the amended petition is sufficient, was timely filed, and that the Commission has jurisdiction over the parties and the subject matter of the dispute.

2.That the bargaining unit consists of the following job classifications:

PBX Operator, Laundry Worker, Housekeeping Trainee, Housekeeping Aid, Personal Clothing Attendant, Laundry Seamstress, Food Service Worker Trainee, Food Service Worker I, Food Service Worker II, Ward Clerk, Nursing Assistant Trainee, Nursing Assistant, Central Supply Technician.

3.That petitioner has made a sufficient showing of interest to entitle it to an election as stated in the Amended Clerk's Report to the Commission, filed July 15, 1991.

4.That a decertification election be conducted as soon as possible.

IT IS THEREFORE ORDERED that a decertification election within the unit determined herein shall be held as soon as possible.Jacqueline Tridle, Clerk of the Commission, is appointed to determine questions arising during the course of the election, and the election shall be held under her immediate supervision. The parties will be contacted by the Clerk to agree upon or have determined all questions concerning the election which are not provided for in CIR Rule 11.

All judges assigned to the panel in this case join in the entry of this Findings and Order.

Entered July 17, 1991.