2 CIR 97 (1974)



Petitioner, |
AFL-CIO, LOCAL 1536. |
Respondent. |

April 9, 1974



William Harding of Nelson, Harding, Leonard, Marchetti & Tate, for the petitioner.

David D. Weinberg, for the respondent.

Before: Judges Baylor, Grant, DeBacker, and Kratz.


The Board of Public Works of North Platte, Nebraska (Petitioner), has petitioned this Court to decertify [1] the International Brotherhood of Electrical Workers, AFL-CIO, Local 1536 (Respondent), as the bargaining representative for all full-time and regular part-time employees of the Petitioner. Respondent was certified by this Court as the collective bargaining agent for Petitioner's employees on September 25, 1970, and on June 1, 1971, the parties entered into a collective bargaining agreement with a 3 year term.

Thirty-two employees within the bargaining unit have now requested, in writing, that the Nebraska Court of Industrial Relations schedule another election to determine whether or not the employees of the Petitioner desire to continue to be represented for collective bargaining purposes by the Respondent. Since there were 49 employees in the bargaining unit on the date the petition was filed. August 24, 1973, the 32 employees requesting the election constitute substantially more than the 30% statutory requirement (Section 48-838(3)).

Though Respondent admits there were 49 employees in the bargaining unit on August 24, 1973, and that 32 of them have submitted a written request for an election, it claims the Petitioner's request for an election is untimely because the collective bargaining agreement between the parties has not expired. Respondent further claims that a petition of this nature can only be submitted by employees, and the Petitioner, therefore, is not the proper party to bring this action.

Section 48-811 of the Nebraska Statutes provides as follows:

Any employer, employee, or labor organization, or the Attorney General of Nebraska on his own initiative or by order of the Governor, when any industrial dispute exists between parties as set forth in Section 48-810, may file a petition with the Court of Industrial Relations invoking its jurisdiction. No adverse action by threat or harassment shall be taken against any employee because of any petition filing by such employee, and the employment status of such employee shall not be altered in any way pending disposition of the petition by the Court.

The above section of the Nebraska law authorizes an employer, such as we have here, to file a petition with the Court when there is an industrial dispute. Though the petition herein does not specifically claim an "industrial dispute", it is obvious from the pleadings and the evidence that an industrial dispute, as that term is defined in the Nebraska statutes, does exist. Section 48-801(7) says an "industrial dispute shall include any controversy...concerning the...representation of persons in negotiation, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment....".

Both parties refer to Section 48-838(I) of the Nebraska statutes on the issue of whether or not an election to revoke the authority of a bargaining agent may be conducted during the term of a collective bargaining agreement. This section provides as follows:

(1) the court shall determine questions of representation for purposes of collective bargaining for and on behalf of employees, and shall make rules and regulations for the conduct of elections to determine the exclusive collective bargaining agent for employees; provided, that in no event shall a contract between an employer and an exclusive collective bargaining agent act as a bar for more than three years to any other party seeking to represent employees, nor shall any contract bar for more than three years a petition by employees seeking an election to revoke the authority of an agent to represent them. 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, which election shall be conducted according to rules and regulations established by the court.

The Respondent contends that this statute specifically prohibits elections during the term of any collective bargaining agreement which has a term of 3 years or less, and the Petitioner argues that Section 48-838(1) does not bar an election petition during the term of the contract, but rather, provides that this question should be determined by the Court's rules and regulations and in the absence of any rules and regulations on this subject, there is no contract bar. This Court has considered the doctrine of contract bar on one other occasion. In Teamsters v. City of Omaha , Case No. 74 (Representation Case No. 4), we said as follows:

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, 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 rue 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.

Thus, we rejected the federal rule on insulation periods because there was no specific Nebraska statute on insulation periods. The Petitioner suggests that there is also no specific Nebraska statute which bars decertification during the contract term, but we disagree. Section 48-838(1) refers to contract bar, and the significant sentence, so far as this case is concerned, is this:

...nor shall any contract bar for more than three years a petition by employees seeking an election to revoke the authority of an agent to represent them.

While this language clearly protects against the establishment of a long term union representation relationship by agreement, it does not, as Petitioner suggests, authorize the establishment of a rule which would allow the filing of a decertification petition at any time during the contract term. Such an interpretation would render the contract bar statutory language almost meaningless. We think the Legislature intended by this statute to say that a collective bargaining agreement, with a term of three years or more, would bar a petition to decertify for three years, but no longer than three years. Consequently, Petitioner is not entitled to a decertification election until the term of the three year agreement has expired (June 1, 1974).

The evidence shows, however, that a significant number of the employees of the Petitioner (more than the 30% required by Section 48-838(3)) desire another opportunity to express their opinion on the matter of employee representation. Under this circumstance to dismiss the petition at this point in time would not be in the best interest of allowing a free expression from the employees regarding union representation, and would not, therefore, effectuate the purposes of the Nebraska Court of Industrial Relations Act. The collective bargaining agreement expires in less than two months and the current wishes of 32 of the 49 employees within the bargaining unit is for another vote on the question of employee representation.


1. That an election be held under the supervision of this Court at some time agreeable to both parties during the first two weeks in June, 1974.

2. That the appropriate unit for voting in said election shall be all full-time and regular part-time employees of the Board of Public Works of North Platte, Nebraska, excluding supervisors and guards.

3. That the election shall be conducted and supervised by either Judge Walter Nielsen or Judge Dean G. Kratz, or both of them.

4. That the parties shall meet with Judges Kratz and Nielsen at 10:00 A.M. on May 1, 1974, at 1217 First National Bank Building, Omaha, Nebraska, for the purpose of determining the dates and procedures for the election, and resolving any issues or controversies between the parties regarding the election.

1 "Decertify" is used interchangeably with the statutory language "revoke the authority of an agent to represent them" (48-838(1)).