2 CIR 67 (1972)



and |
LOCAL No. 594, |
Co-Petitioner, |

Filed September 1, 1972

BAYLOR, Judge.

The prayer of the joint petition filed July 12, 1972, is for a declaration of the appropriate unit. At the commencement of the trial August 23, 1972, the parties stipulated to the appropriateness of a unit consisting of all employees of the City of West Point excluding, however, the Mayor, members of the City Council, the City Engineer, the City Street Superintendent, the City Treasurer, the Chief of Police, the Assistant Chief of Police, all full-time and regular part-time police officers, all part-time Street Department employees, all City Library personnel, the Municipal Plant supervisor, and the City Clerk. Without holding either that we are bound or that we are not bound by the parties' stipulation, or making in this uncontested action any commitment to stare decisis concerning the Court's jurisdiction, we approve the appropriateness of the unit agreed to by the parties. Compare: State of New York and AFSCME, et al. v CSLA, NY PLRB dec ยง1-399.85 (Nov. 17, 1968). See: Teamsters Public Employees Union Local 594 v City of West Point, 338 F. Supp. 927 (DC Neb. 1972).

On August 23 in open court after the stipulation with respect to appropriateness of unit, the parties orally stipulated and jointly moved that the Court order an election for September 8, 1972, and decree the form of notice and of ballot and the designation of a Judge to conduct the election. This motion, if such it was, was denied for at least the reason that the parties were unable to satisfy Sec. 4(3)LB-1228, conditioning an election order on written requests therefor. "The Court shall not order an election until it has determined at least thirty per cent of the employees in an appropriate unit have requested in writing that the Court hold such an election....."

The parties then stated that they will present jointly the required showing and a joint petition for the order, but that such petition will not require formal hearing in the absence of objections from the City as to the sufficiency or validity of the showing as to requests in writing.

The parties' position is well taken that no hearing is required on a joint petition for election. In Board of Public works North Platte and IBEW, Case No. 28, opinion entered September 16, 1970, with respect to a similar joint petition we held:

"......To date at least the parties are in agreement. Accordingly there is no industrial dispute of which the court has jurisdiction under 48-810 (emphasis supplied) and no petition filed under 48-811. ...We do not reach,......the question as to whether detailed allegations in a petition of elements of a controversy concerning the association and representation of persons of such significance that an election (even though procedures therefore were agreed to) would be necessary or desirable to resolve it would constitute an industrial dispute."

Our opinion in this respect is not changed by LB-1228, effective July 6, 1972. It is not necessary to decide whether a controversy over a labor organization's claim of representation of a majority should be characterized as an industrial dispute. Such controversy is to be settled by an election and not by the Court's trial and adjudicative powers. LB-1228 provides:

"Sec 4(1) The court....shall make rules and regulations for the conduct of elections to determine the exclusive collective bargaining agent for employees;....The court shall certify the exclusive collective bargaining agent....following an election by secret ballot, which election shall be conducted according to rules and regulations established by the court.

(2) The election shall be conducted by one member of the court who shall be designated to act in such capacity by the presiding judge of the court,...."

Accordingly an order with respect to a joint petition for election will issue summarily. Judge Grant or Judge Kratz will conduct the election. The form of ballot and of notice approved in said case No. 28 and filed in Certification and Recognition Docket No. 1 have been agreed to by the parties here and likewise will be approved by the Court.


That the appropriate unit for voting in an election to be conducted within a reasonable period hereafter consists of all employees of the City of West Point except the Mayor, City Councilmen, City Engineer, City Street Superintendent, City Treasurer, members of the Police Department, part-time Street department employees, City Library personnel, Municipal Plant supervisor, and City Clerk.


Having examined the joint petition, stipulation, and request filed August 25, 1972, NOW THEREFORE IT SUMMARILY IS ORDERED.

1. That the Court hereby does determine that at least 30 percent of the employees in an appropriate until have requested in writing the Court hold a secret ballot election as to whether a majority of all employees in said unit desire to be represented for the purposes of collective bargaining by Teamsters Public Employees Union, Local No. 594.

2. That such election shall be held between the hours of 10:00 a.m. and 10:45 a.m. at the west Point City Hall on Friday, September 8, 1972.

3. That said election shall be conducted by the Honorable John T. Grant, a Judge of this Court.