|IN THE MATTER OF:|||||CASE NO. 86|
|FRATERNAL ORDER OF POLICE|||||REP. CASE NO. 10|
|KEARNEY LODGE NO. 5,||||
|v.|||||FINDINGS AND ORDER|
|THE CITY OF KEARNEY,||||
NOTE: SOME PUBLISHED ORDERS HAVE BEEN DEEMED TO BE NOT HELPFUL AND HAVE, THEREFORE, BEEN OMITTED FROM THIS FILE.
Jeffrey M. Jacobsen, for the petitioner.
William H. Bruckner, for the respondent.
Before: Judges Baylor, Grant, Kratz and Nielsen.
This case arises upon a petition requesting that the Court of Industrial Relations supervise and conduct a secret ballot election to determine whether or not the full-time police officers in the City of Kearney desire to be represented for the purpose of collective bargaining by the Fraternal Order of Police, Kearney Lodge No. 5. The evidence adduced at the hearing included the following: a stipulation that attachment No. 1 to Plaintiff's petition, introduced as Exhibit #3, constitutes the signatures of police officers employed by the City of Kearney; a stipulation that the appropriate unit for collective bargaining shall consist of all full-time police officers employed by the City of Kearney, including probationary officers, but excluding the chief of police, assistant chief of police, and all other employees of the police department; testimony by James Long, President of Plaintiff, with regard to the composition, activities, and purposes of the Plaintiff; the articles of incorporation of the Plaintiff (Exhibit #1); and the certificate of incorporation of the Plaintiff (Exhibit 32).
At the close of Plaintiff's testimony, Defendant moved to dismiss the petition on the ground that the Plaintiff had not established that it was a labor organization under the Court of Industrial Relations Act and that it did not have the legal capacity to sue in this Court, or any other court. This motion was taken under advisement and Defendant then rested its case, without presenting any evidence.
There is no dispute as to the appropriate unit for collective bargaining, nor as to the signatures on Exhibit #3, the request for an election. The undisputed testimony shows that there were 23 employees within the bargaining unit on the date that the petition was filed (April 11, 1973), and that 11 employees within this unit have requested that this Court conduct and supervise a representation election. Thus, at least thirty percent of the employees in the appropriate unit have requested a representation election in writing, and Section 48-838(3) R.S. Supp. 1972, requires the Court, under this circumstance, to hold such an election.
Defendant, however, argues that Section 48-838(3) is inapplicable for two reasons: (1) Plaintiff is not a labor organization within the meaning of Section 48-801(6), R.S.Supp. 1972, and therefore this Court is without authority to order the election, and (2) Plaintiff does not have sufficient legal capacity to maintain this action.
Both of these arguments are based on the fact that Plaintiff is a corporation. Defendant contends that the Nebraska statutes do not authorize the incorporation of labor unions and since the Plaintiff is incorporated, it therefore cannot be a labor organization, and consequently, it cannot bring suit in the Court of Industrial Relations. Furthermore, since it has incorporated without legal authority to incorporate, it does not have legal capacity to use the courts. We reject both arguments.
The Plaintiff must be an employer, employee, or labor organization in order to file a petition with the Court of Industrial Relations. section 48-811, R.S. Supp., 1972. According to 48-801(6) R.S.Supp., 1972, a labor organization "shall be any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work."
Under the evidence submitted in this case, the Plaintiff clearly is a labor organization under the above definition and is, therefore, according to the specific statutory language and requirements of the Court of Industrial Relations act, entitled to file this petition and bring this action. The fact that Plaintiff is a corporation does not make it any less a labor organization under the definition of labor organization prescribed in the Court of Industrial Relations Act.
Defendant relies on the case of Hurley vs. Brotherhood of Railroad Trainmen , 147 Nebr. 781, 25, N.W.2nd 29. The Hurley case does not say that a labor union cannot be a corporation. It merely holds that "a labor union will not be deemed to be a corporation by virtue of" Section 21-608, R.R.S. 1943. Thus, the case says only that unions are not automatically incorporated by virtue of specific inclusion in Sec. 21-608, but does not say that unions cannot be incorporated under Section 21-1901-21-1999, R.R.S. 1943, the Nonprofit Corporation Act under which Plaintiff has incorporated.
Section 21-1903 of the Nonprofit Corporation Act provides that nonprofit corporations may be organized for any lawful purpose or purposes and Defendant has not shown us that Plaintiff's purported activities, as set out in its articles of incorporation (Exhibit #1), are not lawful. The example list of lawful purposes in this statute does not include collective bargaining, but this is not controlling since the language preceding the example list specifies that non-profit corporations are not "limited to" these examples.
NOW THEREFORE IT IS ORDERED.
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 Fraternal Order of Police, Kearney Lodge No. 5.
2. That the appropriate unit for voting in an election shall be as follows:
All full-time police officers employed by the City of Kearney, including probationary officers, but excluding the chief of police, assistant chief of police, and all other employees of the Police Department.
3. That the election ballot shall contain the following choices: (1) Fraternal Order of Police, Kearney Lodge No. 5, and (2) no union.
4. That the parties shall meet within ten days from the receipt of this order with Judge Richard L. DeBacker for the purpose of establishing a date for the election, a cutoff date for determining the employees eligible to vote, and 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 Richard L. DeBacker.
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.
On November 16, 1973, the Court issued an Order finding that Defendant's "Objections to Election" was in the nature of a Motion for New Trial and ordered a hearing on said motion for November 30, 1973. On November 30, 1973, Defendant filed its Motion for New Trial and hearing was held on that motion. The Court finds that no new evidence or no new issues were presented at that hearing, and, upon consideration of all issues raised by the motion, the Court finds that said motion should be overruled.
NOW, THEREFORE, IT IS ORDERED that the Motion for New Trial be and hereby is overruled.