|IN RE: SOUTH SIOUX CITY|||||CASE NO. 149|
|MUNICIPAL ELECTRICIAN'S|||||REP. CASE NO. 40|
||||ORDER OF DISMISSAL|
Robert G. Scoville for South Sioux City Municipal Electrician's Association.
Wayne E. Boyd for the City of South Sioux City.
Robert E. O'Connor, Jr. for American Federation of State, County and Municipal Employees, Local 2040.
Before: Judges Wall, DeBacker and Green
The City of South Sioux City had entered into a collective bargaining agreement with Local 2049 of the American Federation of State, County and Municipal Employees (AFSCME) covering its employees, which contract was due to expire on July 31, 1975. On July 9, 1975, the Sioux City Municipal Electrician's Association (Association) filed a representation petition seeking to sever the Municipal Electrical Department from other City Departments currently covered to determine who should represent the employees in the Municipal Electrical Department. Subsequent to the filing of the petition, on July 14, 1975, AFSCME and the City entered into a new collective bargaining agreement.
Section 48-838(1) adopts the contract bar doctrine, and, therefore, prevents the filing of a petition seeking to displace an existing representative as to all or part of the members of the unit during the term of an outstanding bargaining agreement, if it is less than three years. The Board of Public Works, City of Fremont v. The International Brotherhood of Electrical Workers, AFL-CIO, Local 1536 , 2 CIR 114-1 (1974). The basic contract bar doctrine deals only with a petition aimed at the period of the existing agreement. Under the contract bar doctrine itself, a petition could be filed prior to the expiration date of an existing agreement, so long as it was aimed at a period after the existing agreement, and the representation cards of the petitioner would not become stale during the period prior to expiration. The Board of Public Works, City of Fremont v. The International Brotherhood of Electrical Workers, AFL-CIO, Local 1536 , supra.
In addition to the basic contract bar doctrine, the NLRB has adopted a timing rule, which gives the parties to an existing agreement the opportunity to enter into a new agreement, and hence to raise a new bar. Petitions for decertification must be filed more than 60 days prior to the expiration of an agreement. The time from the 60th day to the day of expiration is the so-called insulated period. Petitions are not allowed during that time, so that the parties may negotiate, and if they can, enter into a new agreement, free from the threat of rivalry caused by a petition for decertification or change in representatives. See, Morris, The Developing Labor Law , pp. 178-180. Under our decision in Teamster Public Employees Union, Local No. 594 v. The City of Omaha , 2 CIR 74-9, 74-10 (1973), the insulated period is not part of the contract bar doctrine adopted in 48-838(1), cf. The Board of Public Works North Platte, v. The International Brotherhood of Electrical Workers, AFL-CIO, Local 1536 , 2 CIR 97-4, 97-6 (1974). However, in the Teamsters case, we noted that the doctrine of the insulated period was a proper subject for rule making by this court. Subsequent to that decision, we adopted Rule 4E2d, which provides an open period for filing decertification petitions between the 100th and the 60th day before termination of an existing agreement, and provides for an insulated period from the 60th day to termination.
The petition here was filed during the insulated period. It is not in compliance with our rules. A petition that shows upon its face that it may not be entertained under existing rules of an agency is subject to dismissal without hearing. FPC v. Texaco, Inc., 377 U.S. 33, 39 (1964).
The petition of the Sioux City Municipal Electrician's Association shows on its face that it was filed during the insulated period. AFSCME has moved to dismiss upon that grounds, and also notes that a new agreement has been entered into. The Electricians resist the motion. They admit filing during the insulated period, and admit the execution of the new agreement. However, they argue that their petition for representation was aimed at the time after the July 31, 1975 expiration date. However, that resistance to the motion misses the point of the insulated period doctrine. The insulated period is designed to give the parties to an existing agreement an opportunity to enter into a new agreement. If they execute a new agreement, a new bar arises. A petition filed during insulated period is improper whether it is aimed at the remaining days of the old agreement, or at the time after the expiration of the old agreement. Therefore the motion to dismiss of AFSCME is well taken. It is sustained.
Entered November 19, 1975.