2 CIR 114 (1974)



Petitioner, |
LOCAL 1536, |
Respondent. |
and |
Respondent. |

October 4, 1974


George E. Svoboda, of Sidner, Svoboda, Schilke & Wiseman, for petitioner.

David D. Weinberg, for International Brotherhood of Electrical Workers.

Heard before Judges Kratz, DeBacker, Wall, Rudolph, and Green (EN BANC)


The Board of Public Works of the City of Fremont, hereinafter called Petitioner, has asked this Court to order an election among its employees to determine whether or not the employees wish to revoke the authority (decertify) of the International Brotherhood of the Electrical Workers, Local No. 1536, hereinafter called Respondent Union, to represent them in collective bargaining. The Respondent Union was selected to represent certain employees of Petitioner within a designated bargaining unit by virtue of a consent election held on October 15, 1968.

Petitioner's evidence included four petitions, signed by employees of the Petitioner, requesting this Court to conduct an election,[1] and James Gibney and Ronald Bolden testified that the majority of Petitioner's employees desire to be represented by the Independent Employees Association of the Department of Utilities of Fremont, rather than the Respondent Union.

Since the consent election in October of 1968, the Petitioner and Respondent Union have apparently negotiated a new agreement each year. This annual process seemed to involve a submittal of demands to the Petitioner by the Respondent Union representative and then recording of the new wages and conditions in an employee manual which was distributed to all employees. Negotiations were evidently brief and informal, with a minimum of actual negotiating, and no written collective bargaining agreement was ever formed and executed. This year's negotiations proceeded typically, and it is undisputed that agreement was reached prior to the filing of the petition herein.[2]

Section 48-838(1) of the Nebraska Statute says as follows:

(1) The Court shall determine questions of representation for purposes of collective bargaining for and on behalf of the employees, and shall make rules and regulations for the conduct of elections to determine the exclusive collective bargaining agent for employees; provided, that in no event shall a contract between an employer and an exclusive collective bargaining agent act as a bar for more than three years to any other party seeking to represent employees, nor shall contract bar for more than three years a petition by employees seeking an election to revoke the authority of an agent to represent them. The court shall certify the exclusive collective bargaining agent for employees affected by Section 48-801 to 48-823 following an election by secret ballot, which election shall be conducted according to rules and regulations established by the Court.

In The Board of Public Works of North Platte, Nebraska v. International Brotherhood of Electrical Workers, Local No. 1536 , Case No. 97 (Representation Case No. 17), Order issued on April 9, 1974, we interpreted this statute and concluded that a collective bargaining agreement with a term of three years would bar a petition to decertify for three years. This interpretation would include, of course, that a collective bargaining agreement with a term of one year would bar a decertification petition for one year. Section 48-838(1) was intended to bar decertification petitions during the term of the agreement, provided the agreement was for three years or less than three years.[3]

The evidence shows that the parties reached an oral understanding and agreement regarding wages and conditions on June 17, 1974. The term of this oral agreement is from August 1, 1974, to August 1, 1975. During that term, Section 48-838(1) says there can be no decertification.

It does appear that a substantial percentage of the employees of Petitioner are interested in another election to determine their collective bargaining representative, and the purposes of the Court of Industrial Relations act are best served by allowing the employees ample opportunity to select their collective bargaining agent. In North Platte, supra , though the election was requested during the contract term, we ordered an election. This was possible because the petitions were current, the hearing was held within two months of the contract expiration, and we were able to set an election date which was beyond the contract expiration date but still within a reasonable time after the petitions were signed. This is not possible, however, in the instant case because the contract doesn't expire until August 1, 1975. That's 14 months after the petitions were signed and it would not be reasonable to bind the employees to their opinion or employee representation for a period as long as 14 months.

This Court needs to establish a rule for filing of decertification petitions, and it will very shortly establish such a rule. In the meantime, we conclude that the petition herein is untimely in light of the language of Section 48-838(1).

At the close of the Petitioner's evidence, Respondent Union moved for dismissal on the grounds, inter alia ,[4] that there was a contract bar. We reserved ruling on that motion, but at this time will sustain it.

The case is dismissed.

[1] The Petitioner has 102 full-time and regular part-time employees, and 70 of them have signed the petitions.

[2] While Petitioner admits there was an "oral understanding", regarding wages and conditions for the period August 1, 1974 to August 1, 1975, it argues nevertheless that since no agreement was ever executed, the employer retained rights to unilateral changes in the contract. From the evidence presented in this case, however, this Court finds that as of June 17, 1974 there was a valid and binding agreement between the parties.

[3] Petitioner argues that on representation questions the Court is bound only by the requirements of Rule 4(B), and it contends that we should not deny the representation rights of the employees through "technical rules" or the "NLRB concept". Petitioner, however, neglects to mention Section 48-838(1), and that statute, rather than Rule 4(B), technical rules, or the NLRB concept, is the sole basis for the ruling in this case.

[4] Because of the Court's decision that there is a contract bar, it will not be necessary to rule on the other arguments offered by the Respondent Union in behalf of its motion to dismiss.