13 CIR 160 (1998).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

This matter comes on for hearing before the Commission upon issues raised in the Answers and Motions filed by the parties between March 25, 1998 and March 31, 1998. The Petitioner was represented by its attorney, Mark McGuire, Respondent Southeast Community College Area was represented by its attorney, Jerry Pigsley, and Respondent Southeast Community College Faculty Association was represented by its attorney, Richard Boucher. The Commission makes the following findings on the issues and motions.

1) The Respondent Southeast Community College Area filed on March 31, 1998, the bargaining unit description which is contained in the current contract and the parties have agreed that said unit is the bargaining unit which the Petitioner wishes to represent and in which an election should be held. The Motion to Dismiss and the Motion to Make More Definite and Certain is moot with this agreement. The parties have agreed that the list of employees supplied to us by the employer on March 12, 1998 reflects those employees governed by the current collective bargaining agreement and is the eligibility list to be used for purposes of voting.

2) The issue of the possible mixup by voters due to the similarity of names between the two competing unions shall be handled by conducting a mail ballot election, at which time the Clerk shall put the voters' on notice, via the accompanying instruction letter, that the two names are similar and that they should carefully mark the ballot for the union of their choice.

3) The issue of who is the real party of interest is resolved in favor of the Petitioner. Respondent Southeast Community College Faculty Association (SCCFA) claims that the real party of interest in this matter is Nebraska State Education Association (NSEA), with which SCCEA is affiliated and that NSEA also represents the professional faculty at Southeast Community College Area through its affiliate, Southeast Community College Professional Association. SCCFA claims that NSEA would have a conflict of interest representing two groups of employees of the same employer. Even if you adopt Respondent's position that the real party of interest in this matter is NSEA, the Commission is aware of no prohibition against a union representing two different groups of employees of the same employer and in fact the Commission has certified such groups frequently, i.e. NAPE, Local 61, affiliated with AFSCME represents several different units of State of Nebraska employees and Sarpy County Public Employees Association represents several distinct units in Sarpy Co. The prohibitions apply only to not allowing guards and non-guards to be in the same unit or to having the same union represent a group of guards and non-guards of the same employer, (See NAPE, AFSCME Local 61 v. Co. Of Richardson, 12 CIR 100 (1994) ) and of not allowing supervisors to be in the same group as those they supervise (See PLPSO v. Papillion/LaVista School Dist. 252 Neb. 308 (1997)).

4) Based on the evidence presented, the Commission finds that the Faculty for Future Leadership is not a labor organization and not, therefore, an interested party.

5) The Commission finds that the language in the authorization cards signed by employees is not ambiguous. The Motion to Exclude Election Authorizations is overruled.

6) The Respondent Southeast Community College Area withdrew the allegation of a contract bar in its Answer.

7) The Commission relies on Section 48-816(1) which states that "The commission shall have power and authority upon its own initiative or upon request of a party to the dispute to make such temporary findings and orders as may be necessary to preserve and protect the status of the parties, property, and public interest involved pending final determination of the issues." The Commission recognizes that when you have two competing unions it can be very disruptive to the campus as a whole. If the incumbent union were allowed to continue to seek ratification and enter into a contract which may immediately become null and void if the challenging union were certified, the Commission believes that this would add to the confusion and disruption on the campus. However, the Commission believes that the incumbent union should not be restrained or in any way inhibited from explaining and promoting to their members the terms and conditions of employment that they have negotiated. The public interest is best served by holding the election as soon as possible. Therefore, the Commission finds that a Temporary Restraining Order is hereby entered restraining the Respondents from seeking any ratification of any agreement reached prior to the Commission entering an order which would either certify or deny certification to the competing union. Included in this restraining order is a prohibition against the respondents entering into, in any way, an agreement prior to the issuance of an Commission order as stated above.

Entered April 2, 1998.