NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

SCHOOL DISTRICT NUMBER 66,	|	CASE NO. 814
OF DOUGLAS COUNTY, NEBRASKA	|	REPRESENTATION DOC. NO. 279
(Westside Community Schools),	|
	|
Petitioner,	|
	|
v.	|	FINDINGS AND ORDER
	|
SERVICE EMPLOYEES	|
INTERNATIONAL UNION,	|
LOCAL 226, AFL-CIO,	|
	|
Respondent.	|

Appearances:

For the Petitioner: Allen E. Daubman

Koley, Jessen, Daubman & Rupiper, P.C.

One Pacific Place, Suite 800

1125 South 103rd Street

Omaha, Nebraska 68124

For the Respondent: Robert E. O'Connor, Jr.

O'Connor & Associates

2433 South 130th Circle

Omaha, Nebraska 68144

Before: Judges Flowers, Orr and F. Moore

FLOWERS, J:

This matter comes before the Commission upon the Petition, Answer, and Reply and Answer to Counterclaim. A Petition for Decertification was filed by the employer on May 9, 1991. The union's Answer lists two affirmative defenses - 1) that Rule 9A(5) does not require a showing that employees no longer desire to be represented and 2) that the Petition is not timely filed in accordance with Rule 9C as there is no existing agreement, contract or understanding. The Answer also includes a counterclaim alleging that the employer has engaged in unfair labor practices. The allegations contained in the Counterclaim of this case are the same allegations argued by the parties in Case #815, with the exception of one additional allegation in the case at bar. The union's Answer asked that the Commission dismiss this case or in the alternative stay its ruling pending the outcome of Case #815. The Commission recently dismissed Case #815 making moot the question of whether there should be any stay in the case at bar.

Neither of the allegations set forth in the union's Answer requires this Commission to dismiss the Petition herein. While it is true that Rule 9A(5) does not require a showing that employees no longer desire to be represented, the fact that the employer chose this method to support his allegation that the labor union no longer has the support of a majority of a bargaining union's members does not require a dismissal of the Petition. Likewise, while it is true that there is no existing agreement, contract or understanding between the parties revoking compliance with Rule 9C, we are not required to dismiss the Petition. Under those circumstances the employer may file a Petition for Decertification at any time.

The union has alleged that the employer has refused to bargain but has not requested that the Commission make a finding that such is an unfair labor practice or order the employer to bargain. In County of Dakota v. AFSCME , 7 CIR 89 (1983), however, we relieved the employer of any duty to bargain while a Petition for decertification was pending.

THE COMMISSION FINDS:

1. That the Commission has jurisdiction over the parties and the subject matter of the dispute.

2. That the bargaining unit consists of the following:

All full time and part-time employees currently employed by the Westside Community School District #66 in the following job classifications: Education Aides, Para-Professionals, Teachers Aides, Special Ed Aides, Media Assistants, excluding those employees who are supervisors, clerical or guards.

3. That the employer has sufficient ground for believing that the labor organization no longer has majority support and is entitled to an election as stated in the Amended Clerks Report to the Commission dated July 17, 1991.

4. That an election should be conducted as soon as possible.

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

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

Entered July 22, 1991.

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