12 CIR 205 (1995)


LOCAL UNION NO.554 affiliated |
Petitioner, | ORDER
vs. |
Respondents. |


For the Petitioner: M.H. Weinberg

Weinberg & Weinberg, P.C.

9290 West Dodge Road

Suite 205

Omaha, NE 68114-3322

For the Respondent: Jerry L. Pigsley

Harding & Ogborn

800 Lincoln Square

121 S. 13th Street

P.O. Box 82028

Lincoln, NE 68501-2028


This matter comes before the Commission on two Demurrers.

Respondent's Demurrer

Included with Respondent's Answer and Cross-Petition for Decertification was a demurrer to the petition filed herein. Respondent claims that the Petition fails to state facts sufficient to state a cause of action under Neb . Rev . Stat . 48-818 and that the Petition fails to comply with Rules 15 (A)(1) (a) and (c) of the Commission. In particular, Respondent alleges that the Petitioner has not included a clear and concise statement of the facts constituting the industrial dispute or included a list of the job classifications in issue and the specific terms and conditions of employment for resolution by the Commission.

Respondent's Demurrer is without merit. The Petition alleges that Petitioner is the exclusive collective bargaining agent for all of the employees described in Paragraph I of the petition. The Petition also alleges, that despite one or more requests by the Petitioner, the Respondent has refused to negotiate any terms and conditions of employment for the period July 1, 1994-June 30, 1995. Petitioner further alleges that the wages and condition of employment for employees in the bargaining unit are not comparable to prevailing wage rates and conditions of employment for the same or similar work of workers exhibiting like or similar skills under the same of similar working conditions. These fact are sufficient to allege an industrial dispute and invoke the jurisdiction of the Commission. They also satisfy the requirements of Rule 15. Respondent's Demurrer is overruled.

Petitioner's Demurrer

Respondent filed a Cross-Petition for Decertification to which the Petitioner demurrered. Petitioner argues that the Cross-Petition should be dismissed because it fails to comply with Rule 9 of the Commission.

First Petitioner argues that the Cross Petition does not comply with Rule 9C which states that a petition for decertification ". . . may only be filed between the 120th and 60th day preceding the termination of an existing agreement, contract or understanding unless such agreement, contract or understanding shall be for a period of more than three years . . ." In the instant case there is no existing agreement, contract or understanding and there hasn't been one since June 30, 1993. Rule 9C doesn't address the circumstance in which no contract, agreement or understanding exists. Were 9C to apply in such cases the result would appear to preclude employers from raising a decertification issue ever. Rule 9C was adopted to provide some integrity to the collective bargaining process by precluding employers from raising decertification in the midst of negotiations which usually take place in the few months just prior to a contract year's end. The idea was to resolve any serious questions about the bargaining agent's support prior to those negotiations. In this case it is undisputed that there have been no ongoing negotiations and that any negotiations that may have occurred happened only because of the Commission's May 2, 1995 order. The Commission finds that 9C does not preclude the filing of the Cross-Petition for Decertification in this case.

Respondent alleges in its Cross-Petition for Decertification that it has a good faith belief that Petitioner no longer enjoys the support of the majority of the bargaining unit members. Rule 9(A)(4) requires that a Petition for Decertification filed by an employer contain either a detailed statement of the grounds for the employer's belief that the labor organization no longer enjoys the support of the majority of the bargaining unit's members or a showing, in conformity with Rule 10, that the employees no longer desire to be represented by the union. The Cross-Petition contained no showing, thus, the question becomes whether the allegations of the Cross-Petition are sufficiently detailed enough to comply with the rule.

The detailed statement of grounds that Respondent offers is "written statements received by the Respondent Scotts Bluff County Treasurer, made and signed by bargaining unit employees." The Cross-Petition doesn't detail how many such statements Respondent received from how many different employees of the bargaining unit, when the statements were received or a general description of the contents of the statements. The statement of grounds given by Respondent for its good faith belief contains no detail at all.

The Commission will not order an election on the mere assertion by a party that it does or does not have the support of the majority of the employees sought to be represented. Respondent's Cross-Petition contains little more. An election now would be time consuming and have the practical effect of stopping negotiations dead in their tracks. Rule 9(A)(4) was promulgated to prevent an employer from using a decertification petition as a dilatory tactic or tool of harassment. Were the Commission to overrule Petitioner motion, it would open the door to such abuse. Petitioner's Demurrer is sustained and Respondent is given 7 days from the date of this order in which to amend by providing a detailed statement of the grounds for its belief or a showing in compliance with Rule 10. If the Respondent has grounds for a good faith belief that the Petitioner no longer is supported by a majority of the bargaining unit, then it should tell us what that is. Otherwise, we should get on with the determination of wages and conditions of employment.

Entered May 25, 1995.