3 CIR 1 (1974)


Petitioner, |
Municipal Corporation, |
Defendant. |


Appearances: For Plaintiff, John P. Fahey

For Defendant. William A. Harding



The court finds as follows:

1. A bargaining unit consisting of all employees of the City of Hastings in the Departments of Streets and Alleys, Parks and Forestry, Health, and Engineering, excluding supervisors, is an appropriate bargaining unit, as specified in § 48-838, R.R.S. 1943.

2. Thirty percent of the employees within the specified bargaining unit have requested an election, as required by § 48-838, R.R.S. 1943, and Rule 4 of the Rules of this Court.

3. The specified bargaining unit does not affect or include persons within the bargaining units represented by the International Brotherhood of Police Officers, Local Union 141, the Hastings Fire Fighters Association, Local Union 675, and the Hastings Utilities Employees Association.

4. That the Communications Workers of America, AFL-CIO is a labor organization within the meaning of § 48-801, R.R.S. 1943, having a usual place of doing business within the state at 2202 Douglas Street, Omaha, Nebraska 68102.

5. That the petitioner adequately and properly represents those employees of respondent seeking a representation election herein.

6. That employees of respondent are participating in petitioner's organization, have participated in the filing and processing of the petition and action herein, and will participate in the election, if ordered and subsequent steps in the bargaining process, if the election is won by petitioner.

7. That adequate notice has been given or received by all parties affected by this actin at this stage of the proceeding.

8. An election should be held as prayed, within the specified bargaining unit, to determine whether petitioner represents a majority of the employees within the unit.

The bargaining unit specified in the petition somewhat resembles that approved by this court in City of Grand Island , Case No. 24, and subsequently approved by the Supreme Court sub. nom. City of Grand Island v. AFSCME , 186 Neb. 711, 185 N.W. 2d 860 (1971). The firemen and the utility workers each have their own unit for representation, and the balance of the city employees, less the police department, have a sufficient community of interest to indicate the propriety of putting them in a single, separate unit.

The respondent, by brief, by argument, by speculation, but not by evidence, indicates that parties other than those before us have a right to notice of the pendency of the action. In IBEW v. Central Nebraska P.P. & Irr. Dist., Case No. 30, 1971, we decided that the burden to bring in additional parties was on the plaintiff and defendant, Ibid. p. 30-14, or at least to produce evidence warranting the court in taking action to protect the rights of absent parties. Here, there is no evidence whatsoever of any interest in the outcome of this action on the part of the other labor organizations with which respondent deals. There is, likewise, no evidence that any individual has any interest that will not be protected by the notice of election and the ballot box. It thus follows that at this point in this case, and in this state of the record, no other or further notice of this action than that already had is necessary.

In order that future litigants and counsel before us may have some guidance as to the pleading and proof necessary in the area of proper, necessary and indispensable parties, we analogize the situation to that of pleading compliance with a condition precedent under § 25-836, R.R.S. 1943. The conclusory allegation that no other labor organizations have an interest in the case is sufficient to transfer the burden of going forward with the evidence, but not the burden of proof, to the respondent. If there is a failure of evidence on the subject by the respondent, then the conclusory allegation will stand. If evidence is adduced, then the court will decide which of the parties bears the burden of bringing in an additional party or parties, or if the court should take some action such as that taken in IBEW v. Central Nebraska P.P. & Irr. Dist., Case 30, supra.

The evidence brought out at the hearing of June 27, 1974, dispelled whatever doubts may have been left from the previous hearing as to employee participation in the request for a representation election, and as to plaintiff's standing as a "labor organization" as defined by § 48-801 (6). We hold that it would be a futile act and, therefore, unnecessary, for the petitioner to set up a local or to issue memberships or to collect dues or take any other formal action other than that required by statute or rule until it has won the election it is asking for on behalf of the requesting employees. We note that this holding appears to accord with N.L.R.B. practice,[1] but do not rely on N.L.R.B. cases for our holding. We held in IBEW v. Hastings , Case No. 17, and again in Nebraska Dept. of Roads Emp. Association v. Department of Roads , Case No. 57 (at p. 57-17)that § 48-801 did not require that a labor organization had been organized by any formal process or designated to act for employees by any formal means. We now extend our formal recognition of informality in the bargaining process to the formation of smaller units of a larger union. Evidence of participation and purpose are required, but they need follow no specified form.

The order which this opinion supports was entered by the Court on June 28, 1974, prior to the retirement of Judge Baylor. Judge Baylor did not have the opportunity to see the text hereof prior to his retirement and, therefore, should be considered as concurring in the result only.

[1] Bewley Mills , 77 N.L.R.B. 132 (1948)

Aluminum Co. of America , 80 N.L.R.B. 1342

Sherold Crystals, Inc. 104 N.L.R.B. 140 (1953)

Standard Cigar Co. , 117 N.L.R.B. 129 (1957)

Glass Arts, Inc. 124 N.L.R.B. 192 (1959)