|BUILDING SERVICE EMPLOYEES,|||||CASE NO. 123|
|LOCAL NO. 226, Affiliated|||||REP. DOC. NO. 24|
|v.|||||FINDINGS AND ORDER|
|PAPILLION SCHOOL DISTRICT||||
|NO. 27 OF SARPY COUNTY,||||
|NEBRASKA, A Political||||
Daniel G. Dolan, of Lathrop, Albract & Dolan, for plaintiff.
John P. Kelly, of Atkinson & Kelly, for defendant.
Heard before Judges Kratz, DeBacker, Wall, Rudolph, and Green.
In this case plaintiff seeks certification as the exclusive bargaining agent for all service employees, including custodial, maintenance and bus drivers of the defendant.
By its petition plaintiff alleges that plaintiff requested recognition as a collective bargaining agent for the service employees from defendant. The parties agreed that the defendant would bargain with the plaintiff, if, after an election to be held under the supervision of both parties, a majority of the service employees expressed a desire to be represented by plaintiff. Such election was held, and 20 employees, the total number of employees in the unit, voted for representation by the plaintiff. The answer of defendant admits all these facts and joins in the prayer of the petition of plaintiff.
In essence then, though not in form, the case before us is a stated case requesting a decision as to whether or not certification may properly follow on an election conducted by the consent of the parties. Our reading of the CIRA convinces us that certification on these facts is not permissible. Section 48-838(1) provides that:
...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...
The same section goes on to provide in its subsection (2):
The election shall be conducted by one member of the Court...
Taken together, these two subsections of Section 48-838 make a Court-supervised election a condition precedent to certification as an exclusive bargaining agent. Thus, we lack jurisdiction to grant the relief for which plaintiff prays.
However, certification by this Court is not a prerequisite to bargaining. Section 48-816 authorizes a public employer "to recognize employee organizations for the purpose of negotiating collectively in the determination of, and the administration of grievances arising under, the terms and conditions of employment of their public employees as provided in this Act, and to negotiate and enter into written agreements with such employee organizations in determining such terms and conditions of employment." Later in the same section, it is provided that:
Where an employee organization has been certified as an exclusive collective bargaining agent or recognized pursuant to any other provisions of this Act, the appropriate public employer shall be and is hereby authorized to negotiate collectively with such employee organization the settlement of grievances arising under the terms and conditions of employment of the public employees as provided in this Act, and to negotiate and enter into written agreements with such employee organizations in determining such terms and conditions of employment, including wages and hours.
The distinction which the two parts of Section 48-816 draw between a certified bargaining agent and a recognized employee organization demonstrates that a labor organization may obtain recognition through the voluntary action of an employer, as well as through the judicial process. Where, as here, an employer has determined to grant recognition to a labor organization, and where the employer entertains no doubt that the labor organization represents a majority of its employees, it may bargain with such labor organization.
While we cannot grant the relief which plaintiff seeks, we believe that it would be appropriate, given the agreement of the defendant that plaintiff represents a majority of its employees, to direct the parties to meet together and bargain.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. The petition of plaintiff for certification as an exclusive bargaining agent is denied.
2. Defendant having admitted that it has recognized plaintiff as a representative of its employees, plaintiff and defendant are directed to meet together and bargain concerning any and all subjects appropriate for bargaining between them under the provisions of Section 48-816, Nebraska Reissued Revised Statutes.