2 CIR 74 (1973)



UNION, LOCAL NO. 594, Affiliated | REP. DOC. NO. 4
with International Brotherhood of |
Teamsters, Chauffeurs, warehouse |
Men and Helpers of America, |
Plaintiff, |
Municipal Corporation, | Appeal by intervenor
| to Nebraska Supreme
Defendant. | Court was dismissed
| upon failure of appellant
AMERICAN FEDERATION OF | to file briefs. October
Local Union No. 251. |
Intervenor. |


April 26, 1973


This case comes before the Court on a petition for election, filed on January 5, 1973. Plaintiff's petition requests the right to represent exclusively for collective bargaining the employees of the City of Omaha in an appropriate bargaining unit. Prior to filing its petition, Plaintiff had, on December 18, 1972, requested that the City recognize it as the exclusive bargaining agent and had been refused "unless and until such labor organization is certified by the Court of Industrial Relations as the collective bargaining representative for an appropriate unit of employees of the city of Omaha".

Since 1969, the City has negotiated a collective bargaining agreement with Intervenor, the American Federation of State, County, and Municipal Employees, AFL-CIO, Local Union No. 251 (AFSCME)[1], and these parties were in the process of attempting to negotiate a new agreement[2] at the time Plaintiff requested recognition.

Plaintiff's petition did not include AFSCME as a party to the proceedings, and AFSCME filed a motion to intervene. This motion was granted on February 15, 1973.

Though the City at the time Plaintiff requested recognition (December 18), took the position that they would negotiate with neither party pending a determination of the lawful bargaining agent by this Court, it nevertheless introduced an ordinance[3] on February 6, 1973, which would put into effect a collective bargaining agreement between the City and Intervenor. On February14, 1973, six days prior to the third and final reading, Plaintiff filed a motion with this Court requesting it to restrain the City from passing the ordinance. This motion was heard and considered on February 19, 1973, and an order was issued restraining and enjoining the parties from implementing or enforcing any collective bargaining agreement with respect to the disputed employee unit and from recognizing any labor organization as the exclusive representative of the members of said unit.

Hearing on Plaintiff's petition for election was held on March 6, 1973, from 9:00 A.M. until 10:30 P.M. Counsel for the parties raised no objection to the Court's decision to proceed in this matter during the evening hours. At the close of its case, counsel for the Intervenor requested a continuance for the purpose of allowing him to have Plaintiff's signatures examined by a handwriting expert. This request was denied. No affidavits were offered in support of this application and there was no showing to indicate any probability that the handwriting examination would materially affect the outcome. Furthermore, the signatures had been available to Intervenor for several days and he, therefore, had sufficient time prior to the hearing to prepare this type of defense.

The parties entered into a written stipulation at the hearing which provides:

IT IS HEREBY STIPULATED by and between all parties to this action that the collective bargaining unit described in paragraph IX of Defendant's second amended answer is an appropriate bargaining unit.

Paragraph IX of Defendant's second amended answer describes the appropriate collective bargaining unit as follows:

All employees in the classified service as defined in Title 7.04.130 of the Omaha Municipal Code, excluding the classifications set forth in appendices I and II attached hereto, and all other supervisory, professional, and confidential and managerial employees as defined in appendix III, attached hereto.

The parties further stipulated orally that said unit, on January 5, 1973 (the date of the filing of the Petition), contained 923 employees,[4] and we have concluded that this date should be used for determining compliance with Section 48-838(3), R.S.Supp. 1972.

Section 48-838(3) says that "the court shall not order an election until it has determined that at least thirty percent of the employees in an appropriate unit have requested in writing that the court hold such an election. No election shall be ordered in one unit more than once a year." The requirements of this statute are incorporated into Section 4(B)(4) of the rules of the Court of Industrial Relations.

Under this statute, therefore, if Plaintiff cannot show at least 277 valid signatures, this Court cannot order an election. Most of the evidence elicited at this hearing concerned the number and validity of Plaintiff's thirty percent showing of interest and the first question to be answered by the Court is whether thirty percent of the employees in the appropriate unit requested in writing that the Court hold an election.

Plaintiff's proof of thirty percent interest consisted of 30 exhibits. Each of these exhibits contained a place for signature under the following legend: "The undersigned civilian employees of the City of Omaha request the Nebraska Court of Industrial Relations to conduct and supervise a secret ballot election to determine whether or not the civilian employees of the City of Omaha, Nebraska, should be represented for collective bargaining purposes by Teamsters Public employees, Local Union No. 594."

The exhibits were identified by witnesses who testified that they had circulated the petitions, knew the signers, and witnessed the signing. They were admitted into evidence over objections by the City and Intervenor.[5]

Plaintiff's exhibits contained a total of 399 names. These 399 names are listed and classified by the City in Exhibit No. 2.[6] The testimony of Louis Diamantis, labor relations manager for the City, shows that the first four classifications listed on the cover page of Exhibit No. 2 are a part of the appropriate bargaining unit. The testimony and stipulations also show that the 13 federal program employees (PEP and CEP), the 6 seasonal employees, the 1 retired employee, the 3 non-civilian employees, and the 2 unclassified employees are not included in the stipulated bargaining unit. Obviously, the 7 names that are scratches should also be removed, as should the 24 employees who were not on the City employment list on January 5,[7] and, by agreement of the parties, the 5 female employees in the prosecutor's office. We do not eliminate any of the names listed as (1) "not legible"[8] or (2) identical except for the middle initial.[9] Thus, the 399 names are reduced by 61 to 338.

Intervenor presented testimony and exhibits which illustrated that 11 employees requested the removal of their names from Plaintiff's petitions. One of the 11, John Whitney, testified that he had never signed the petition. Another witness, Kenneth McReynolds, testified that the petition was not explained to him and he didn't understand what he was signing. Julius Ballard, one of the 11 whose name was on a written document requesting removal, appeared as a witness for Plaintiff and testified that he circulated one of the petitions. Given the opportunity to cross-examine Ballard, counsel for Intervenor did not inquire about his current union preference and the Court, therefore, must consider his oral testimony, which authenticated his own signature on one of Plaintiff's petitions, as an indication that he favors Plaintiff's request for an election. thus, 11 names (11, plus McReynolds, minus Ballard) must be removed from Plaintiff's petitions.

We have also concluded that Exhibit No. 7 should not be considered. This exhibit was presented by Jerry Triplett, who testified forthrightly and competently regarding the circulation of Exhibits 4, 5, and 6, but was uncertain about Exhibit No. 7. He didn't recall obtaining the signatures and was in doubt about his own signature on the exhibit. Exhibit No. 7 also contains the name of John Whitney who has testified that he did not sign it.

The record further indicates that there were a total of 16signatures which were not observed by any of the witnesses who testified in the proceeding, and we have decided to remove those names.[10]

The total of additional names, then, to be removed from Plaintiff's petitions is 34: the 16 just described, the 10 employees who requested removal, the one who did not understand the petition, and 7 names on Exhibit No. 7.[11]

The removal of 34 names from Plaintiff's petitions, in addition to the 61 previously removed, does not reduce the total to less than thirty percent[12] and we conclude, therefore, that Plaintiff has satisfied the requirements of Section 48-838(3).

There are other arguments, however, which must be considered before we can order an election. The Intervenor claims (1) that the Court does not have jurisdiction because there is no industrial dispute, (2) that an agreement on wages and conditions of employment had been reached between the City and the Intervenor prior to the filing of the petition in this case and therefore the election is barred by that agreement, (3) that Plaintiff's request for recognition and its petition for an election is untimely because of an "insulation period" which covers the immediate 60 days prior to the contract renewal date, and (4) that the contract between the Intervenor and the City did not expire on December 31, 1972, but continued to run with provision only for the negotiation of "modifications".

(1) Industrial Dispute

Section 48-801, R.S. Supp., 1969, includes as an industrial dispute any controversy "concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, or refusal to discuss terms and conditions of employment." Clearly, the dispute involved herein, under the definition just described, is an industrial dispute and this Court has jurisdiction.

(2) Contract

It is also quite clear that no agreement had been reached between the City and Intervenor at the time this petition was filed. The evidence shows that while the parties had agreed upon, and initialed, several items, there were other items which were still in dispute[13] on the date of the last meeting between the parties (early November) and on December 20 when negotiations were temporarily halted because of the letter from Plaintiff. J.B. Ledford, Vice President of Intervenor and a member of the negotiating team, testified that the parties did not have a complete agreement at the conclusion of their last negotiation session.

Witnesses for Intervenor testified that had there been another meeting between the parties after December 18, Intervenor would have accepted the City's position on all matters, except wages, and wages were no longer in dispute because they would be handled through a separate city ordinance. Intervenor's position in this regard, however, was never communicated to the City, and it is quite apparent, therefore, that no agreement had been reached between the parties at the time of Plaintiff's request for recognition, or at the time that Plaintiff filed its Petition for an election.

(3) Contract Bar and Insulation Period

The National Labor Relations Board has a discretionary, administrative policy, called the contract bar rule, which prohibits a petition for election by a rival union during the term of a contract, not to exceed three years. Included in this rule is the requirement that the petition for election cannot be filed more than 90 days nor less than 60 days prior to the contract expiration date. The 60 days prior to the contract termination is called an "insulation period". Under this rule, a rival union, where a collective bargaining agreement is in effect but approaching expiration, has only a thirty day period in which to file its petition for election. Intervenor contends that this doctrine should apply to this case and Plaintiff's petition, therefore, is untimely, because, though it was filed after the expiration of the contract and before agreement on a new contract, nevertheless, it was based on a demand for recognition served during the "insulation period."

The contract bar rule is a procedural rule "which the Board in its discretion may apply or waive as the facts of a given case may demand in the interest of stability and fairness in collective bargaining agreements." NLRB v. Libbey-Owens Ford Glass Co. , 241 F.2d 831, 32 LC 70,557. It is a reasonable rule, precipitated by a desire to establish stability, equality, and fairness in collective bargaining. We doubt, however, that the Board ever applied this procedural rule without first announcing and publishing it.

At the present time, there is no statute in the Court of Industrial Relations act, nor is there any rule of this Court, which provides for a 60 day insulation period, and the Intervenor's contention in this regard is therefore rejected.

(4) Contract Expiration

The collective bargaining agreement between the City and Intervenor contains the following clause:

This agreement shall be and shall remain in full force and effect from February 1, 1972, until December 31, 1972, and thereafter for successive one (1) calendar year periods, unless one of the parties hereto on or before April 1 of any such year shall notify the other party hereto in writing of its desire to modify the same, or any part thereof...

Intervenor contends that under the afore-described clause the contract did not terminate on December 31, 1972, but continued to run, and the negotiations that took place were merely for the purpose of modifying the agreement.[14] The contract provision clearly states the term of the contract as "from February 1, 1972, until December 31, 1972." It does provide that the contract shall continue to run if the parties do not give notice of a desire to negotiate changes. This means, of course, that if the condition precedent (notice of desire to change the agreement) is met, the contract expires on the scheduled date (December 31, 1972). On March 16, 1972, when Intervenor notified the city of its desire to commence negotiations, the contract expiration date became fixed at December 31, 1972.


1. That the Court hereby does determine that at least thirty percent of the employees in the appropriate unit (described below in paragraph 2) have requested in writing that the Court hold a secret ballot election as to whether a majority of the employees in said unit desire to be represented for the purpose of collective bargaining by Teamsters Public Employees Union, Local No. 594.

2. That the appropriate unit for voting in an election shall be as follows:

All employees in the classified service as defined in Title 7.04.130 of the Omaha Municipal Code, excluding the classifications set forth in appendices I and II and excluding all other supervisory, professional, confidential and managerial employees as defined in appendix III.

3. That the election ballot shall contain three choices: (1) Teamsters Public Employees Union Local No. 594, (2) American Federation of State, County and Municipal Employees, AFL-CIO, Local Union No. 251, and (3) neither.

4. That the parties shall meet within ten days from the receipt of this order and agree upon a date for the election and a cutoff date for determining the employees eligible to vote. Said election date shall not be later than thirty days from the date of the issuance of this order, and shall be agreeable to Judges John T. Grant and Dean G. Kratz. On May 7, 1973, the parties shall meet for a pre-election conference with Judges John T. Grant and Dean G. Kratz, at 11:00 A.M., at 1217 First National Bank Building, Omaha, Nebraska, for the purpose of determining the procedures which will govern the conduct of the election. Any disputes between the parties regarding the election procedures shall be resolved by an order of this Court.

5. That the election shall be conducted and supervised by the Honorable John T. Grant or Dean G. Kratz, Judges of this Court, or both of them.

6. That the rules and procedures set forth in the Notice of Election for Representation Case No. 1 (see Rule 9 of the Rules of Procedure of this Court) shall be used by the parties in conducting this election.

7. Judge Neilsen did not participate in the hearing of this case or the entering of these Findings and Order.


1 These negotiations were voluntary. There has been no certification of a bargaining representative by this court.

2 Intervenor claims an agreement had been reached, but the facts do not support this conclusion, as will be later explained.

3 Two ordinances were actually introduced, one included only the wage provisions, and the other contained the conditions of employment. None of the parties, however, objected to the wage ordinance, which was approved on February 20, 1972, and became effective April 1, 1973.

4 Counsel for Intervenor stipulated that this was the fact, but he wanted it understood that his stipulation in this regard did not constitute agreement that January 5 was the date to be used in determining the thirty percent showing of interest required by Section 48-838(3).

5 Exhibit No. 7, however, was offered by Intervenor, and accepted, without objection.

6 Exhibit No. 2 actually shows a total of 414 names, but one exhibit, containing 15 names (D-2 on Exhibit No. 2), was never introduced into evidence.

7 Exhibit No. 2 shows 25 in this category, but one of these was included in the fifteen names on D-2, which have already been eliminated.

8 The identity of the names listed as "not legible" on Exhibit No. 2 has been established by the testimony and by agreement at the pre-trial conference.

9 All of the names in this category are quite common, such as Wm. A. and Wm. F. Smith, James A. and James F. Hall, Walter B. and Walter J. cooper, and Robert J. and Robert L. Hays. Furthermore, the testimony of John Mahr confirms the separate identity of the Novaks, Tripletts, Smiths and Freemans.

10 The Court, however, is not convinced that such strict proof is required by Section 48-838(3) and is giving careful consideration to handling the requirements of this statute administratively, like the National Labor Relations Board. After all, the signatures are not conclusive of who is to represent the employees, but are merely conclusive as to whether there is sufficient interest to justify the time and expense of a procedure to determine who is to represent the employees.

The National Labor Relations Act. Section 9(c)(I), requires that a petition for certification allege that a "substantial number" of employees wish to be represented for collective bargaining. The National Labor Relations Board has interpreted "substantial" to mean thirty percent and doubtless this interpretation is responsible for the specific language of our statute. The purpose of the thirty percent requirement, according to the Board, is to "screen out those cases in which there is so little prospect of the petitioner winning an election, if directed, as not to warrant incurring the expense of further proceedings on the petition." Sheffield Corp. (1954) 108 NLRB 349, Plains Cooperative Oil Mill (1959) 123 NLRB 1709, Economy Furniture Co., (1959) 122 NLRB 1113, International Furniture Co. (1958) 119 NLRB 1462.

Along with this interpretation that a "substantial number" is thirty percent, the Board also decided that it would determine this requirement administratively, rather than by an evidentiary proceeding, and it has refused to allow evidence on this issue. Stokely Foods, Inc., 78 NLRB842. In O.D. Jennings & Co. (1946) 68NLRB 516, the Board declared that the thirty percent showing of interest is an administrative expedient only, "adopted by the Board to determine for itself whether or not further proceedings are warranted and to avoid needless dissipation of government's time, effort and funds."

The object and purpose of section 48-838(3) is also to screen out those representation cases where there is little chance of success and thus avoid needless dissipation of the court's time, effort and funds.

Thus, though the federal law requires a "substantial number" and ours says "thirty percent", the two laws are similar and have the same object and purpose. Furthermore, it is quite apparent that our law was copied after theirs, and the Nebraska Supreme Court has ruled that the decisions under the National Labor Relations act should be helpful to this Court. City of Grand Island v. American Federation of State, County, and Municipal Employees, AFL-CIO, et. al. , 186 Neb. 711. Under these circumstances, it would seem reasonable to treat and apply the two laws in a similar manner.

11 This exhibit actually has 8 names, but one of those (Whitney) is counted among the 10 who requested removal.

12 Plaintiff appears to have 304 valid signatures, and though the record is not completely clear regarding the exact number, we have no hesitancy in concluding that the figure exceeds the required number of 277.

13 Wages, insurance, longevity, hours of work, overtime, management rights.

14 The other party to the agreement apparently interpreted it differently. Both in its resolution of December 26 and its December 20 letter to Intervenor the City specified that the collective bargaining agreement between the parties would "expire on December 31, 1972."