14 CIR 267 (2004)


a Nebraska cooperative corporation )
                                  Petitioner, )
         vs. ) FINDINGS AND ORDER
                                  Respondent. )


For Petitioner: Terry Curtiss
Curtiss, Moravek, Curtiss, Margheim & Miller
416 Niobrara Avenue
P. O. Box 460
Alliance, NE  68301-0460
For Respondent: Dalton W. Tietjen
Tietjen, Simon & Boyle
200 Haymarket Square
808 P Street
Lincoln, NE  68508

Before: Judges  Burger, Blake, and Lindahl



The Panhandle Rural Electric Membership Association ("Petitioner" or "PREMA") filed a decertification petition, requesting that an election be held to determine whether the International Brotherhood of Electrical Workers Local 1250, ("Respondent" or "Union") should cease to be the representative of the bargaining unit members. The Respondent filed an answer, alleging that the Petitioner had failed to provide a proper showing of interest in support of its request for election, and that the cards provided no indications of employee sentiment for discontinuation of union representation. The Respondent also filed a cross-claim alleging that the Panhandle Rural Electric Membership Association committed a prohibited practice by interfering with, restraining, or coercing employees in the exercise of their rights granted by the Industrial Relations Act ("IRA") and denying the rights accompanying certification granted by the IRA.

The Commission held a Preliminary Proceeding on December 8, 2003. At this proceeding, the parties agreed to submit a joint stipulation of facts. After receipt of the Stipulation of Facts, a briefing schedule was agreed to, and the case was deemed submitted on February 3, 2004.

For the reasons stated herein, the Commission finds the Petitioner did not file the necessary showing of interest as provided for in Rule 9(A)(4). The Commission therefore, finds that the Petition for Decertification should be dismissed.


The Respondent and the Petitioner entered into a labor agreement effective January 1, 2002 to December 31, 2004. On December 19, 2002 the Respondent and the Petitioner amended the previously written labor agreement, changing the contract’s termination date from December 31, 2004 to December 31, 2003. At various times from late 2002 through the spring of 2003, several employees talked to foremen, Ron Sandoz and Dean Haney and, to a lesser extent, to PREMA general manager, Ryan Reiber about various questions and concerns regarding the Union. Any comments made to the foremen were directly relayed to the general manager. The discussions began to center on the issue of rising health care costs. It was determined that no action could be taken prior to 120 days before the end of the contract, so no action was taken at that time. From these general comments, it appeared to the general manager that a significant portion of the bargaining unit wanted information about the procedure to vote on whether or not the Union should continue to represent the employees. No formal meetings were held at this time, and the only information given to the employees, was a general explanation of the process involved in having a vote on continuing representation by the Union in bargaining. This occurred at a regular monthly employee meeting.

The general manager conducted two formal meetings with all employees within the bargaining unit. The formal meetings occurred on September 4, 2003. The meetings occurred in Alliance on the morning of the 4th, and in Hyannis in the afternoon of the 4th. Both meetings were held at PREMA facilities, and both were scheduled without reference to the items to be discussed. Attendance at the meetings was mandatory for the employees. The general manager presided over the meetings. Mr. Reiber indicated to the groups that some of the employees indicated an interest in reviewing the status of the Union, but he did not state exactly what had been said by those employees to trigger such a process. He then stated that all of the original employees, who had voted in the initial election selecting a bargaining representative had either quit, died, retired, or had been promoted. Mr. Reiber then told the employees that presently, relations with the employee group were as good as they had ever been, and that the only question being asked was whether an election should occur. Mr. Reiber further stated that he did not want to jeopardize that relationship.

At the end of these statements, Mr. Reiber circulated the Request for Election card and the memo that he had prepared. As he circulated the memo, he stated that it was up to the employees to decide. He also stated that it was acceptable to fill in the card with a yes or a no, or not even fill it out or take a position. He went on further to comment that it would be possible to vote yes now, and then to vote no on the question of decertifying the Union at the actual election. After these statements, Mr. Reiber collected the cards.

At Hyannis, the election request cards had been inadvertently left in Alliance, so only having the memo with him, Mr. Reiber stated that employees should write their preference with respect to the election on the memorandum, signing their names.

Two employees were unable to be present at either of the two meetings. In Alliance, a foreman was asked to have the absent employee stop by and visit when he returned so that the employee could view the information presented on the election. The absent Alliance employee then visited the general manager and filled out a request for election card. In Hyannis, the memorandum was left with the other foreman, who then gave it to the employee who was absent at the September 4, 2003 meeting. The absent Hyannis employee then faxed the general manager his request for election memorandum.

No other meetings or discussion occurred between Mr. Reiber, or any other member of management, with the employees, after September 4, 2003. The general manager announced that a Petition had been filed with the Commission, but he did not elaborate or discuss this further at the regular monthly employee meeting.


Showing of Interest

The Respondent argues in its answer that the Petition for Decertification simply does not contain a proper showing of interest as required by the IRA and Rule 9(A)(4). Rule 9 sets out the nature of the showing required for a decertification petition:

(i) a detailed statement of the grounds for the employer’s belief that the labor organization no longer has the support of a majority of the bargaining unit members; or (ii) a showing that the employees no longer desire to be represented by the currently recognized or certified labor organization…

In the instant case, after telling the employees that relations with the employee group were as good as they had ever been, and that the only question being asked was whether an election should occur, Mr. Reiber circulated the Request for Election card and the memo that he had prepared. The memorandum circulated states that "there may be several among you that would like to know the opinion of the rest of the group regarding union representation," and continues in the next sentence, "By signing this card, you are stating you would like to see an election held; not necessarily whether you are for or against union representation." (Emphasis in original).

These statements in the memo and the "request for election" cards do not contain any language expressing any dissatisfaction with the Respondent’s representation, or a desire to discontinue that representation. The plain meaning of the language in the cards presented to the employees by the Petitioner does not satisfy the requirements of Rule 9(4)(A) of the Commission. Petitioner argues that the Commission can infer lack of support from its cards "requesting an election" in the same manner as it would infer lack of support from a revocation of a payroll deduction for payment of dues to a bargaining unit or representative. However, the memorandum expressly states the opposite; that their signature on the card does not indicate dissatisfaction with the Union, only that they want an election held.

Such plain language cannot be misconstrued, and the stipulated facts presented do not support a finding that the employees were dissatisfied with their bargaining representative. The Commission conducts formal, contested decertification elections upon a valid showing as required by Rule 9. This rule acts as a gatekeeper to insure that a serious question exists to be resolved by an election, and prevents the process from devolving into a poll on consumer satisfaction. We find that the Petitioner did not satisfy the threshold requirement of Rule 9(A)(4), and that the Petition should be dismissed.

Cross-Claim § 48-824

Respondent’s answer included allegations described as a cross-claim that the actions of preparing and distributing the election cards, and canvassing the employees regarding the possibility of a decertification election was a prohibited practice. Respondent alleges that these acts interfere with, restrain or coerce employees in the exercise of rights granted by the IRA, or deny the rights accompanying certification under the Act.

The prayer asks for dismissal of the Petition, and a cease and desist order. We conclude that this request for a cease and desist order prevents the determination to dismiss the Petition from rendering the cross-claim moot.

Although the discussion occurred at a mandatory meeting called by management, and the Request for Election cards were prepared by management, the unusual facts of this case lead to the conclusion that their actions did not interfere with, restrain or coerce the employees in the exercise of rights granted by the IRA, or deny them the rights accompanying certification.

The agreed and stipulated facts clearly state that employees initiated the discussions of the subject with management; management refrained from any derogatory or threatening references concerning the Union, and expressed a desire to not jeopardize a positive relationship between the employees and management.

The employees were actually not asked to disclose opinions or sentiments concerning the Union in the Request for Election Card. This fact led to our conclusion above that the documents the employees were requested to sign were essentially of no legal effect.

No threats were made of adverse employment actions, or promises of benefits. No employee has complained of any adverse employment action related to the actions of September 4, 2003, or related to Union representation. No employee indicated that he felt threatened, or intimidated by the discussions that occurred September 4, 2003, or harassed by management because of any action, or inaction concerning the possibility of an election.

Under these specific facts we decline to find that the actions of the Petitioner violated Neb. Rev. Stat. § 48-824. This determination should not be read as approval of the practice of management preparing, and distributing decertification cards at a mandatory employee meeting; or otherwise conducting captive polling of employee sentiment toward the bargaining representative. It is based solely on the fairly unique, and undisputed facts in this specific case.

IT IS THEREFORE ORDERED that the Petition for Decertification is hereby dismissed.

All panel judges join in the entry of this order.


Issued March 10, 2004.