NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

On April 21, 2004, the County of Gage and the members of the Board of Supervisors, in their official capacities ("Petitioners" or "County") filed a decertification petition, requesting that an election be held to determine whether the General Drivers & Helpers Union Local No. 554, ("Respondent" or "Union") should cease to be the representative of the bargaining unit members. Petitioners also requested a temporary order suspending its duty to bargain pending the outcome of the election. The Respondent filed an answer alleging that the Petitioner had not appropriately described the unit for a decertification election, because, the unit sought to be decertified is not the same as the recognized unit. The Respondent also alleged that the authorization cards were invalid as they were the product of threats or promises of agents of the Petitioner, made for and on behalf of the Petitioner. Respondent also requested a temporary order requiring Petitioner to continue bargaining, and alleged that bargaining should continue between the Petitioner and those unit employees who still desired the Union to continue to represent them after an adverse election.

On April 28, 2004, the Clerk of the Commission entered her report, finding that a total of 52% of the employees in the bargaining unit have indicated that they no longer desire to be represented by the Respondent, and that Petitioner had made a sufficient showing of interest to entitle it to an election.

A hearing was held on both the Petitioners’ and Respondent’s Request for Temporary Relief filed as part of the preliminary proceeding on May 4, 2004. At the hearing, the Commission denied both Requests for Temporary Relief, set the case for Pretrial, and scheduled Trial for June 18, 2004. At the Pretrial conference the issues were identified as follows:

1. Description of the bargaining unit, for purposes of conducting an election.
2. Whether any authorization cards were obtained by threats or promises made by agents of management.
3. The appropriate remedy if authorization cards were obtained by threats or promises made by agents of management.
4. The impact of Respondent’s request for bargaining order surviving an adverse election, and the duty of the Petitioner to bargain pending an election.

On the eve of trial, the parties submitted a joint Stipulation resolving or reserving most issues. This stipulation left the Commission with the question of the impact of the Respondent’s request for a bargaining order surviving an adverse election, and the duty of the Petitioner to bargain pending the election. Trial was held on these issues June 18, 2004.

The Stipulation between counsels resolved disputes over the appropriate description of the bargaining unit, the members of the unit entitled to vote, and the sufficiency of Petitioner’s showing of interest. The Stipulation was approved, and an on site election was separately ordered by the Commission on June 18, 2004.

For the reasons stated below, the Commission declines to order the parties to bargain, or to cease from bargaining, pending the election. The Commission also concludes that Respondent’s Request for a Bargaining Order for those employees desiring Respondent’s representation after an adverse election is not ripe for adjudication.

DISCUSSION:

The Petitioners argue that the Commission has authority and should issue a temporary order suspending the County’s obligation to bargain pending the outcome of a decertification election. Respondent argues to the contrary that the Commission should issue a temporary order requiring the County to bargain with the Respondent pending the outcome of the election.

The Commission has authority upon its own initiative, and by request of the parties, 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. See University Police Officers Union v. University of Neb., 203 Neb. 4, 277 N.W.2d 529 (1979). However, this authority is clearly a discretionary act of the Commission. In County of Dakota v. AFSCME Local 2049-A, 7 CIR 89 (1983), the Commission granted an order suspending bargaining, pending a decertification election. However, this decision on whether a temporary order is necessary to preserve and protect the status of the parties, property, and public interest is dependant on a case-by-case factual determination. In Southeast Community College Education Ass’n v. Southeast Community College Area and Southeast Community College Faculty Ass’n, 13 CIR 160 (1998), the currently certified bargaining union sought to have its members ratify a contract agreement it had reached after a filing requesting decertification by a challenging union. The Commission determined that it would add to the confusion and disruption if the incumbent union were allowed to continue to seek ratification, and enter into a contract which may immediately become null and void by the challenging union being certified. The Commission issued an order restraining attempts at ratification pending the election. However, the Commission also determined that the incumbent union could not be restrained or in any way inhibited from explaining and promoting to their members the terms and conditions or employment that they had negotiated. The Commission concluded that the public interest was best served by holding the election as soon as possible.

In this case, we decline to either suspend or require a temporary order to bargain. The public interest appears better served through ordering an election to occur as soon as possible to resolve the issue of decertification of the Union.

The Respondent argues that Nebraska Law is unique in allowing a non-exclusive bargaining agent to handle grievance and legal matters even if there is an exclusive bargaining agent and, therefore, the Respondent can continue to represent those employees who wish to be represented by the Union even after adverse election.

We conclude that the question of whether unit employees desiring representation by Respondent after a decertification election is not ripe for decision. The result of the disputed election cannot be presumed. We have consistently stated in the past that, "If there is no dispute pending before the Commission, we will not issue an advisory opinion or an opinion intended to provide future guidance to the parties." See City of Omaha v. Nebraska Public Employees Local No. 251, 10 CIR 233 (1990). If the Commission were to decide this issue before an election had taken place, its opinion would be solely advisory. Presented with a representation petition, after a decertification, the Commission could then attempt to determine whether the proposed unit was appropriate, as required by Neb. Rev. Stat. § 48-838. The Commission concludes that this issue is not ripe for determination, and therefore denies the Respondent’s request.

IT IS THEREFORE ORDERED that both the Petitioners’ and the Respondent’s Requests for Temporary Orders are hereby denied. Respondent’s Request for a Bargaining Order following the decertification election is denied as not ripe for determination.

All panel judges join in the entry of this order.

Entered June 28, 2004.