11 CIR 177 (1991)


Petitioner, |
Respondent. |


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

O'Connor & Associates

2433 South 130th Circle

Omaha, NE 68144

For the Respondent: Allen E. Daubman

Koley, Jessen, Daubman &

Rupiper, P.C.

One Pacific Place, Suite 800

1125 South 103rd St.

Omaha, NE 68124

Before: Judges Orr, Flowers, and F. Moore


In this action, the Petitioner (Union) filed a petition on May 14, 1991, alleging that the Respondent (School District) committed unfair labor practices. This case is intricately tied to two other cases involving these same parties, one currently before the Commission and the other on appeal to the Supreme Court. The history of these cases goes as follows:

The Commission entered a Section 48-818 Findings and Order in Case No. 798 and subsequent Final Order on April 8, 1991, in which the Commission found that comparability resulted in some of the employees of the school district receiving a wage decrease while others received an increase. The Union has appealed this matter. Subsequent to our wage determination, the employer filed a decertification petition accompanied by authorization petitions signed by certain employees which the Commission docketed as Case 814. Finally, the Union has filed the case at bar, Case 815, alleging certain unfair labor practices on the part of the employer.

Specifically, the Union charges that the employer has committed an unfair labor practice by implementing only part of the Commission's wage decision in Case 798, without bargaining over such implementation with the Union nor seeking an enforcement order in the district court. Secondly, they allege that the employer assisted or encouraged the employees to decertify their union. We will address each of these issues separately below.


The union argues in this unfair labor practice charge that the employer cannot implement parts of the CIR's order and ignore other parts. At the beginning of the hearing, the Judge advised the parties that it was the Commission's opinion that the employer has the prerogative not to lower wages, even if a wage reduction had been ordered. At the trial, it was revealed that the employer had granted the wage increases ordered by the Commission and that decreases would not be implemented, but instead, those employees who would have received a decrease under the CIR's order would be frozen on the salary schedule. It is inconceivable to the Commission why the Union would object to this implementation of the order by the employer. We do not feel that the employer's actions in any way undermine the authority of the Union. If the employer were required to bargain with the Union over the implementation of the CIR's order, the industrial dispute would be back to square one. It has certainly always been the employer's prerogative to pay above the prevalent. Furthermore, the employer was not required to seek an enforcement order in district court. Enforcement orders are for failure to comply with our orders and the employer is not failing to comply when it gives employees all the advantages of our order and none of the disadvantages.


The Union also charges that the employer encouraged the employees to collect decertification petitions by stating that it was the Union's fault that the Commission's wage order gave decreases to many of the employees which would, at the very least, give the impression that perhaps the employees could preserve their wage rate or get an increase if they decertified their union. They also charge that the employer encouraged the decertification process by attending a meeting of paraprofessionals and by allowing them to advertise meetings, where decertification was discussed, through the district's various communication systems when they had been forbidden the use of school equipment to conduct union business in the past.

It is a violation of the National Labor Relations Act, section 8(a)(1), for an employer to solicit employees to withdraw or obtain return of employees authorization cards and withdraw their support for a union. See The Developing Labor Law (2d ed., 5th Supp. 1982-88). It also notes that in Ace Hardware Corp ., 271 N.L.R.B. 1174, 117 L.R.R.M. 1096 (1984), "the Board distinguished soliciting employees to withdraw from the union and bringing to the employees' attention their right to do so in a context free of threats, coercion, or promise of benefits. In finding no violation, the Board also noted that the employees had requested information regarding withdrawing from the union." The Commission often uses the rulings of the NLRB as a guideline when it has similar statutes.

On April 16, 1991, a memorandum was issued by Assistant Superintendent Perkins regarding contract negotiations and the subsequent CIR Order of April 8, 1991. This memo stated what the final offer of the district had been to the Union, what the Final Order of the Commission provided, the aggregate amount that the Order was below the employer's final offer and that a final decision as to whether this Final Order would be fully implemented for those paid over-schedule had not been made. On April 19th, a staff bulletin was received by the paraprofessionals which stated that a meeting regarding the April 16th memo had been arranged with Mr. Perkins for April 23rd. A subsequent revised staff bulletin came out on Monday, April 22, changing the wording of this notice somewhat, indicating that the meeting was only to be attended by paraprofessionals and leaving out the statement that the meeting had been arranged with Mr. Perkins. After the April 23rd meeting, another meeting was held with two paraprofessional representatives from each building on April 24th. In attendance at the meeting was Superintendent Tangdall and Assistant Superintendent Perkins. At that meeting, the discussion seemed to focus on two issues: 1) the Commission's wage Order and 2) the decertification process. Somewhere after April 30th and before May 6th, petitions signed by employees wanting to decertify the union were delivered to Mr. Perkins and during this same time period, a decision was made to only partially implement the wage order. Actually, the decision to partially implement occurred by at least May 3rd as it was put on the school board meeting's agenda on that day.

Both gentlemen had been invited to attend the April 24th meeting for informational sharing purposes and Mr. Tangdall stated at the beginning of the meeting that they were not there to influence the paraprofessionals in any way regarding any decision they made with regard to future negotiations. Mr. Tangdall stated at trial that there had been much confusion and discouragement among employees regarding the Commission's wage order and that there had been a lack of communication with the employees. The employer had taken a position not to talk to the employees about what was going on with the wage case while it was pending before the Commission. Once they received a final order, they felt they could be more open. After Mr. Tangdall's opening remarks, the floor was opened up for questions and one of the first questions put to them was whether or not the employer would help the employees file a decertification petition under the Commission's rules. Mr. Tangdall responded that they would do so only if they were certain that the Union was no longer representing a majority of their group. He testified that he did not tell her how to go about gathering that evidence. When someone said at this meeting that they had petitions, both gentlemen said they were leaving and did so.

We see nothing in the conduct of these gentlemen at this meeting or the way in which the meetings had been advertised to suggest that the employer was either intentionally or unintentionally encouraging the employees to seek withdrawal of union support.

On the charge that the employer was encouraging the employees to decertify their union because they allowed them touse the district's mail distribution facilities and equipment, this charge is without foundation.

The Petitioner also contends that at this meeting, the employer stated or inferred that it was the Union's fault that many of the employees received a wage decrease, lending encouragement to the decertification drive. Mr. Tangdall stated that he was asked how this could have happened to the employees (a wage cut) and that he and Mr. Perkins explained their understanding of how the Commission determines comparability and that it didn't surprise him any that the Commission ordered a decrease because he had always felt that comparability would indicate that a decrease was in order. What he told the employees at this meeting seems to be a reiteration of what was stated in the Commission's Final Order when it said that "even had the Commission adopted the Petitioner's array in its entirety, a significant number of the employees in this unit would have received a wage decrease at maximum." Thus, we see nothing mean-spirited in his statement, but merely a recitation of the Commission's statement.

Furthermore, while Rule 9A(4) may not require an employer to make a showing of interest, it certainly requires that an employer have a belief that the labor organization no longer represents a majority of employees and attaching authorization cards or authorization petitions to its petition is certainly a way of showing that. Most employer decertification petitions filed with the Commission use this means of substantiating their belief. It is perfectly permissible and there is certainly nothing wrong in an employer filing a decertification petition.

The Commission hereby finds that the Petitioner's request for a temporary and permanent order is overruled. This case is dismissed.

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

Entered July 3, 1991.