12 CIR 208 (1995)


LOCAL UNION NO.554 affiliated |
Petitioner, |
v. | ORDER
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 Respondents' Cross-Petition and Motion for Temporary Order and Petitioner's Demurrer to the Cross-Petition.

Petitioner's Demurrer

Petitioner demurred to Respondents' Amended Cross-Petition for the reason that it raises a representation issue within a pending wage case. Petitioner relies on Educational Service Unit No. 1 Educational Association v Educational Servce Unit No. 1 , 8 CIR 340 (1986) in which we said

When a wage case is pending, public policy demands a quick and speedy determination and neither party should be allowed to hold up a wage determination case by injecting a bargaining unit question. A party seeking to amend a bargaining unit is required to file a separate action in the representation docket under the procedure provided by Rule 12.

In Educational Service Unit , the outcome of the bargaining unit question would not have been determinative of the wage case. That is, the wage case would have gone forward regardless of whether the bargaining unit was amended. That is not the circumstance in the instant case. Here, Respondents' Cross-Petition asks for an election because they believe that the Union has lost the support of the majority of the members of the bargaining unit. If what the Respondents believe is true, there would be no wage case at all. No public policy is to be served by moving forward with the wage case and determining later that an election should be held (particularly if the union were to lose that election). While we could order the Respondents to file a separate Petition in the representation docket, we would still be in the same place. It serves no purpose to move forward on the wage case if there is reason to believe that the union is no longer supported by the majority of the members of the bargaining unit. That is true whether the representation issue is raised by a cross-petition or a petition separately filed and numbered. Petitioner's demurrer is overruled.

Entitlement to an Election

The question now becomes whether the Commission should order an election to determine whether the Petitioner should continue as the exclusive bargaining agent for the members of the Scottsbluff County Treasurer Office. We should do so only if there is reason to believe that the union no longer has the support of the majority of the members of the bargaining unit. While our Order of June 7, 1995 did not say so, the Commission ordered an evidentiary hearing on this question because the Cross-Petition was not accompanied by a showing generally in conformity with Rule 10 from which we could make such a determination. The hearing was held on June 9,1995. Petitioner was representated by M.H.Weinberg and the Respondents were represented by Jerry Pigsley.

At the hearing, Darlene Robertson, Scottsbluff County Treasurer, testified on behalf of Respondents. She testified that she received three statements from three different bargaining unit members in 1993 and a fourth from a fourth member in 1994. One of the statements indicated that the employee wished to terminate all association with the union. The other three said only that the employee did not wish to be a member of the Petitioner union. One of the employees from whom she had received a statement is no longer a member of the bargaining unit. Robertson did not know how any of the employees felt about union representation at the present time.

Petitioner offered and the Commission received cards signed by five of the current members of the bargaining unit stating that they wished the Petitioner to be their exclusive agent for collective bargaining purposes. All of the cards were signed in April of this year.

There are, at most, eight people in the bargaining unit. There was some evidence that the parties may have, by agreement, reduced the number of people in the bargaining unit to seven by excluding part time employees.

The Commission finds that there is insufficient reason to believe that the Petitioner has lost the support of the majority of the members of the bargaining unit. Respondents' belief to the contrary is based upon four statements, three of which are 2 1/2 years old and one of which comes from an individual no longer employed by the treasurer's office. Furthermore, a statement from an employee that he or she does not wish to be a member of the union does not necessarily mean that the employee does not wish to be represented by the union in collective bargaining.

Respondents' request for a decertification election is denied and since there is no other relief prayed for, its Cross-Petition is dismissed.

Respondents' Request for Temporary Order

Respondent filed a motion asking that all proceedings under Neb Rev Stat 48-818 be stayed until such time as the decertification proceedings involving the Petitioner have been concluded. Since Petitioner's Cross-Petition has been dismissed, Respondent's Motion is overruled. The Commission's order of May 2, 1995 remains in effect.

Entered June 14, 1995.