2 CIR 75 (1973)



In the Matter Of: | Case No. 75
TEAMSTERS PUBLIC EMPLOYEES | Representation Case No. 5
affiliated with International |
Brotherhood of Teamsters, |
Chauffeurs, Warehousemen and |
Helpers of America, |
Plaintiff, |
NEBRASKA, A Municipal |
Corporation, |
Defendant. |


*(Editors Note: As amended by order entered September 4, 1973)

August 20, 1973


David D. Weinberg, for the Plaintiff.

William Harding, for the Defendant.

Before Judges Baylor, Kratz, Grant and DeBacker.


This case arises from a petition, filed on February 7, 1973, requesting that the Court of Industrial Relations order a secret ballot election among the employees of the City of Columbus for the purpose of determining whether these employees wish the Plaintiff Union to represent them in collective bargaining. A hearing on the petition was held on March 27, 1973. The evidence, consisting of stipulations, 8 Exhibits and the testimony of one witness, included the following: (1) a letter of November 29, 1972, from the Plaintiff Union to the City of Columbus, hereinafter called City, requesting that the City recognize the Plaintiff for the purposes of collective bargaining (Exhibit #1); (2) a letter, dated January 4, 1973, from the Mayor of the City to the Plaintiff refusing recognition and suggesting that Plaintiff avail itself of itself of its rights under the Nebraska law and request a secret ballot election from the Nebraska Court of Industrial Relations (Exhibit #2); (4) a list of the employees who are supervisory and/or management personnel and therefore are excluded from the bargaining unit (Exhibit #3); (5) a description of the appropriate bargaining unit, as stipulated to by both parties (Exhibit #4); (6) a stipulation that the Plaintiff is a labor organization doing business in the State of Nebraska with a regular place for doing business (Exhibit #5); and (7) signatures of certain employees of the City underneath a legend which requests 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 Columbus shall be represented for collective bargaining purposes by Teamsters Public employees, Local 594 (Exhibits 36, #7, #8).

In addition to the above-described stipulated and documentary evidence, John Mahr testified that he was president of the Plaintiff Union, that the Plaintiff Union maintained an office in Omaha, Nebraska, that meetings were conducted at that office address, and that the Plaintiff Union maintains records at that address. Mahr also named the officers of the Plaintiff Union, described the bargaining activities of the Plaintiff Union within the State of Nebraska, and stated that he had circulated Exhibits 36, #7, and #8 and had witnessed the signatures thereon.

There was further evidence in the form of a stipulation that Ernest A. Janssen, Richard J. Sliva, and Kenneth Phugge, were no longer employed by the City at the time of this hearing, but were employees on November 30, 1972, the date the petitions were circulated. Mahr testified that he had no knowledge as to whether these three employees were employed by the City on February 7, 1973, the date of the filing of the petition for certification.

The principal issue in this proceeding is whether or not this Court should order an election among the employees of the City of Columbus within the stipulated bargaining unit. The applicable Nebraska law, Section 48-838(3), says as follows:

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.

There is no dispute over the Court's jurisdiction and the Court clearly has jurisdiction over the parties and the subject matter involved herein. Thus, if we determine that thirty percent of the employees within the appropriate bargaining unit have submitted a written request for an election, we must order an election.

Exhibits #4 and #2 describe the bargaining unit and list the employees within that unit. These Exhibits illustrate that on March 6, 1973, there were sixty-nine employees of the City who were within the bargaining unit (seven from Administrative, Clerical and Fiscal Department, five civilian employees from the Police Department, eleven from the Streets, Grades and Engineering Department, eleven from the Streets, Labor and Trades Department, nine from Parks and Recreation Department, sixteen from the Water and Sanitation Department, nine from the City Library Department, and one from the Cemetery Department). These figures include the addition and the elimination of the employees specifically listed in Exhibit #4 and the removal of Carl Walschin, a supervisor, and William Grubaugh, deceased.

If there are sixty-nine employees in the bargaining unit,there must be twenty-one valid signatures on Plaintiff's petitions in order for this Court to order an election. We have determined that the Plaintiff's petitions contain at least twenty-two valid signatures and therefore an election will be ordered.

The minimum figure of twenty-two results from the following facts and interpretations: Exhibit #8, which is also an attachment to the representation petition labeled as Exhibit "C", contains twenty-three signatures. Exhibits 36 and 37 contain a total of twenty-seven signatures. Twenty-two of the names on Exhibit #8 and on Exhibits #6 and #7 are duplications. Exhibits #8 has one name that is not contained on Exhibits #6 and 37, Terry L Northrup, and Exhibits #6 and #7 have five names which are not contained on Exhibit #8, John Nauenberg, Joseph Zwiener, Harold Coulter, Don Mausbach, and Donald Sliva. This makes a total of twenty-eight different signatures on the three exhibits. The undisputed testimony, however, shows that William grubaugh is now deceased and that Carl Walschin is a supervisor. Thus, those two names must be removed. Evidence further shows that Janssen, Richard Sliva, and Phugge were employed by the City on November 30, 1972, but were not employed on March 6, 1973. There is no evidence to show that they were employed by the City on the date of the filing of the petition, February 7, 1973, nor does the evidence show that they were not employed on that date. In other words, the dates of these employees' termination from employment of the City are not known insofar as this record is concerned. Though there was testimony concerning Janssen, Phugge, and Richard Sliva, there is no testimony concerning Donald Sliva. His signature, dated November 22, 1972, is on Exhibit 37, but his name is not among those employed on March 6, 1973, and we therefore have no record either of when his employment terminated.

In Teamsters vs. City of Omaha , Representation Case No. 4, Order entered April 26, 1973, we held that the date for determining the thirty percent showing of interest was the filing date of the petition for certification. The Plaintiff has the burden of proving the thirty percent showing of interest and there is no evidence in this record which proves that these four employees were working for the City on the date of the filing of the petition. Thus, the signatures of Janssen, Phugge, Richard and Donald Sliva cannot be used. The removal of these four names plus Walschin and Grubaugh, leaves twenty-two valid signatures, which is more than thirty percent of the total number of employees within the bargaining unit.


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 purpose of collective bargaining by Teamsters Public Employees Union Local, No. 594.

2. That the appropriate unit for voting in an election will be all the full-time and regular part-time employees of the City of Columbus, Nebraska, in the following departments:

Employees of the Administrative, Clerical, and Fiscal Department; Streets, Grades, and Engineering Department;Streets, Labor and Trades Department; Parks and Recreation Department; Water and Sanitation Department; City Library Department; Cemetery Department; and Police Department-civilian employees; excluding Supervisors and uniformed employees of the Police Department and Fire Department.

3. That the election ballot shall contain two choices: (1) Teamsters Public Employees Union, Local 594, and (2) no union.

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 cut-off 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. The parties shall arrange a date and place for a pre-election conference with Judge Dean G. Kratz, which conference shall be 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 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.


September 5, 1973


This matter comes before the Court on Defendant's Motion to reopen the record and take additional testimony. Defendant states the additional evidence would be for the limited purpose of showing that certain employees, prior to the petition filing date, had withdrawn their names from the request that this Court conduct a secret ballot election. The basis for this motion is the fact that the Court's decision in Teamsters v. City of Omaha , Representation Case No. 4, April 26, 1973, was not decided at the time of the hearing in this case, March 27, 1973, and the Defendant was therefore unable to adequately prepare its defense to the Plaintiff's allegation of an adequate showing of interest.

While it is true that the Court had not established the petition date as the showing of interest determination date at the time of the hearing in this matter, there was also no rule at that time which would indicate that signatures withdrawn prior to the petition filing date were nevertheless valid for purposes of determining the 30 percent. At the time of the hearing in the instant case, the Court had made no ruling on a date for establishing the statutory 30 percent, and the Defendant could, therefore, present any evidence, and argue for any rule, on this issue that it thought appropriate.

Under this circumstance, it is the Court's opinion that if the Defendant had evidence that certain employees had withdrawn their names from the election request prior to the petition filing date, February 7, 1973, said evidence should have been presented at the hearing.

Defendant's motion to reopen the record in this matter is therefore denied.


September 27, 1973


On September 6, 1973, Defendant filed a motion requesting this Court to strike Exhibits 6 & 7 from the record. This motion was denied on September 12, 1973, without a specific explanation of the Court's ruling. The basis for the Court's decision to deny that motion is as follows:

Attachment A, which shows that Joseph E. Zweiner specifically in writing on October 30, 1972, withdrew his request for an election, was available for presentation as evidence in this matter on the date of the hearing, but was not presented.

There is no evidence in this record that Dale Lovell was not an employee of the City of Columbus on the date that the petition in this matter was filed. The fact that Dale Lovell was not an employee of Plaintiff on August 20, 1973, the date of the Court's decision in this matter, is not relevant to the issues in this case.

If employees Nauenberg, Zweiner, Coulter and Mausbach had withdrawn their request for an election at the time of the hearing in this matter, Defendant should have introduced evidence at that time of that fact. Furthermore, any change in their position in this regard should have been presented to the Court at the hearing.

Thus, the motion is based on alleged facts which could have been presented at the hearing, and were not, on an alleged fact which is irrelevant, and on claimed rebuttal presumptions which were not presented or argued to the Court until now. The Defendant offered no evidence on these now alleged facts at the hearing, nor did it present any argument to the Court on these issues, either orally or by brief.

The construction of the Court of Industrial Relations Act is a newly developing field of the law, and it is therefore impossible for this Court to reconsider or grant a new trial in every instance where counsel has failed to anticipate a possible new development in the interpretation of the Act.

Consequently, Defendant's motion to strike is denied and it is hereby so ordered.

The Court further orders that the parties meet with Judge Dean G. Kratz, in his office at 1217 First National Bank Building, Omaha, on October 3, 1973, at 10:30 a.m., for the purpose of establishing the date, time, and procedures for the conduct of the election.

Defendant's motion for reconsideration, filed September 14, 1973, is also denied on the basis of the order and findings set out above.