12 CIR 131 (1994)


Petitioner, |
v. | ORDER
Respondent. |


For the Petitioner: John P. Fahey

Robert W. Kortus

Broom, Johnson, Fahey & Clarkson

722 St. Mary's Avenue

310 Flatiron Building

Omaha, Nebraska 68102

For the Respondent: Diane Staab

Michael Thew

Deputy County Attorneys

County-City Building

555 South 10th Street

Lincoln, Nebraska 68508

Before: Judges DeLay, F. Moore, Flowers, McFarland, and Cullan (EN BANC)



This matter came on for hearing on the petition of the Petitioner for certification of the Fraternal Order of Police Lodge No. 32 as the bargaining representative for the correctional officers of the Respondent County pursuant to Neb. Rev. Stat. § 48-838 (1993), and Rule 6 of the Rules of the Nebraska Commission of Industrial Relations. The petition was filed with the Commission on the 8th day of August, 1994. The Clerk's Report to the Commission pursuant to Neb. Rev. Stat. § 48-804.01 (1993) certified that 77.3% of the employees in the claimed appropriate bargaining unit authorized the filing of the representation petition. The Petitioner claimed in said petition that the correctional officers had been and were represented by the American Federation of State, County and Municipal Employees Local No. 2468 (AFSCME) through August 31, 1994, but the bargaining unit, by a vote of its members, agreed to immediately release the correctional officers from AFSCME Local No. 2468, and attached to the petition was a letter from an official of that organization releasing the correctional officers from representation by said AFSCME Local No. 2468. The Respondent filed an Answer on the 26th day of August, 1994, wherein the Respondent admitted that AFSCME Local No. 2468 had agreed to release the correctional officers from said bargaining unit, and admitted that the letter of July 29, 1994 attached to the petition was in confirmation of said action. The Respondent, for affirmative defenses to the representation petition, however, claimed that a petition for decertification under Rule 9 of the Rules of the Commission had never been filed, and that the petition of the petitioner was in reality a petition for decertification which was untimely filed in violation of Rule 9(G) of the Rules of the Commission. The Respondent also defended on the grounds that certification of the Petitioner as the bargaining representative for the correctional officers would constitute undue fragmentation for the reason that FOP, Lodge No. 29, consisting of deputy sheriffs was in existence, and there was a community of interest between the members of that bargaining unit and the correctional officers.

Hearing was held on the 28th day of September, 1994, at which time the parties stipulated and agreed that the hearing could be bifurcated, with the Commission resolving the issue of jurisdiction of the Commission to hear the Petition for Representation, ie., whether the petition was in substance an untimely filed petition for decertification upon the evidence submitted on the 28th of September, and in the event the Commission found in favor of the Petitioner on that issue, then the hearing would be reconvened on the issues of undue fragmation and other issues raised by the pleadings.

Whereupon, evidence was adduced, and arguments had, and the Petitioner moved in open hearing for leave to offer additional testimony at a later date to which the Respondent did not object; that said motion was sustained, and hearing was recessed to October 6, 1994, at 8:30 o'clock a.m., when hearing was reconvened, and additional testimony and other evidence was offered by the parties, and this matter was taken under advisement by the Commission pending the filing of briefs by the parties.

Pursuant to Rule 26(B) of the Rules of the Nebraska Commission of Industrial Relations, a judge of the Commission made a motion that this Order be determined en banc. A majority of the judges voted in favor of the motion.


On August 31, 1993, the Respondent and AFSCME entered into a collective bargaining agreement covering certain county employees, including the correctional officers, which contract was to expire on the 31st day of August, 1994. The County and AFSCME began negotiations in early spring of 1994 in anticipation of the expiration of said contract in which AFSCME actively represented the interests of all its members, including the correctional officers. The authorized negotiators for the County were notified as early as late June or early July, 1994, by AFSCME that a possible issue concerning AFSCME's representation of the correctional officers existed.

On July 13, 1994, a letter from the authorized representative of Petitioner was delivered to the County informing the County that the Petitioner intended to represent the correctional officers and that AFSCME would vote to release the correctional officers from that bargaining unit.

On July 14, 1994, during the final negotiation session between the County and AFSCME all provisions, terms and conditions of the collective bargaining agreement had been successfully negotiated which agreement specifically included the correctional officers as part of the identified bargaining unit, and specifically included a provision for overtime pay and job bidding which provisions were specific to the correctional officers. The County and AFSCME also verbally agreed that if the correctional officers were subsequently excluded from the bargaining unit prior to the execution of the negotiated collective bargaining agreement, that the provisions for overtime and job bidding, exclusive to the correctional officers, would be omitted from the collective bargaining agreement negotiated between the County and AFSCME, and if the correctional officers continued to be represented by AFSCME to the date of execution of said collective bargaining agreement, that said provisions would remain in the collective bargaining agreement.

On the 26th day of July, 1994, the County wrote a letter to the Petitioner herein, stating that the County had not received official notice that AFSCME had released the correctional officers from their bargaining unit, and stating that the County would not enter negotiations with the Petitioner until it was designated as the correctional officers' exclusive bargaining agent. On July 27, the County received written notice that the members of AFSCME had voted to accept the 1994-1995 collective bargaining agreement, and on July 29, 1994, the County received written notice from AFSCME that the members had voted to immediately release the correctional officers from the bargaining unit.

On August 30, 1994 the County and AFSCME entered into the negotiated collective bargaining agreement for the year 1994-1995. Subsequent to the filing of the petition in this cause, but prior to the execution of said collective bargaining agreement, the County and AFSCME agreed to exclude the correctional officers from the negotiated agreement, and deleted reference to the correctional officers in Appendix A of said contract, the "Bargaining Unit Classifications," and deleted the provisions of the contract in regard to overtime and job bidding which were the sole provisions in the contract specific to the correctional officers. During the hearing, the parties admitted that the correctional officers were not included in the 1994-1995 negotiated collective bargaining agreement executed by the County and AFSCME.


Rule 9 of the Rules of the Commission of Industrial Relations provides that either the employer or the employees may file a petition in the representation docket of this Commission for decertification of a labor organization in representing a unit. The rule further provides that if the recognized or certified labor organization no longer wishes to represent said unit, an official of the labor organization may file a letter with the Commission stating that it no longer wishes to represent the unit and it has no objection to the Commission's decertifying it immediately without the necessity of an election. Rule 9(G) also provides that such a petition may only be filed between the 120th and 60th days preceding the termination of an existing collective bargaining agreement. Rule 9 of the Rules of the Nebraska Commission of Industrial Relations was adopted by the Commission pursuant to the authority granted to the Commission by Neb. Rev. Stat. § 48-809 (1993). No Nebraska statute exists which specifically limits the time period within which a petition for decertification must be filed. Rule 9 was adopted by the Commission from a discretionary administrative policy adopted by the National Labor Relations Board called the "contract bar" rule. The rule provides an insulated period during which petitions for decertification cannot be filed. The purpose of the "contract bar" rule is:

". . .[P]rovide a balance between dual objectives. First, [it furthers] industrial peace and stability by assuring that the labor relations environment will not be disrupted during the term of the collective bargaining agreement and by providing the parties with a period just before the expiration of the contract during which they can negotiate a new agreement free from such disruption. Equally important, however, the rules provide a set opportunity for employees who are disenchanted with the performance of their collective- bargaining representative to seek its removal or replacement with another representative."

Crompton Co., 260 NLRB 417, 418, 109 LRRM 1161, 1162 (1982).

In Ny-Lint Tool & Mfg. Co. 77 NLRB 642, 22 LRRM 1061, the issue presented to the Board was whether an "issue of representation" was raised granting the Board under the NLRA jurisdiction to hear a decertification petition cause filed by the employer when the labor organization had voluntarily disavowed any claim of representation of the employees involved. The Board held that upon the labor organization's abandonment of its right to represent the employees, the labor organization waived any obligation the Employer had to recognize it as the bargaining representative of such employees. The Board further held that:

"In the absence of a claim by the Union to represent the employees in the aforesaid unit, a question concerning representation does not exist, and the Board is, under these circumstances, without jurisdiction to proceed . . . Accordingly, we shall dismiss the petition."

Id. at 643, 22 LRRM at 1062.


We find that AFSCME waived its right to represent the correctional officers, and the County clearly, unequivocally and decisively waived any objection it may have had to the disclaimer filed by AFSCME, and waived any objection the County may have had to the failure of the Petitioner to first file a petition for decertification by voluntarily removing the correctional officers from the negotiated contract which was entered into between AFSCME and the Respondent on August 30, 1994. A waiver is a voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intention that such right be surrendered. Licht v. Association Services, Inc., 236 Neb. 616, 623, 463 N.W.2d 566, 571 (1990).

We further find that the petition filed was for certification of the Petitioner as the bargaining unit for the correctional officers who were voluntarily abandoned by both the County and AFSCME, and that any objection the County had to the filing of the petition for certification on the grounds that a petition for decertification was not timely filed was waived by the County by its actions in this case.

We further find from the facts of this case, that the Commission has jurisdiction to resolve the issues raised in the petition for certification filed by the Petitioner.


The objections of the County to the petition of the Petitioner on the grounds that (1) that the petition filed is in fact a petition for decertification, and (2) no petition for decertification has been timely filed are hereby overruled and denied.

All judges join in the entry of this Order.

Entered November 7, 1994.