5 CIR 408 (1982)


An Unincorporated Association, | REPRESENTATION CASE NO. 146
Petitioner, |
v. | ORDER
Subdivision, also known as SIDNEY |
Respondent. |


For the Petitioner: Theodore L. Kessner

Crosby, Guenzel, Davis Kessner & Kuester 400 Lincoln Benefit Building

Lincoln, Nebraska

For the Respondent: William A. Harding

Nelson & Harding

500 The Atrium

1200 N Street

Lincoln, Nebraska

Before: Judges Berkheimer, Gradwohl, and Orr


NOW ON THIS 27th day of January, 1982, this matter comes on for hearing upon the Respondent's Motion to Dismiss. The parties have submitted the Motion on a joint Stipulation and Exhibits A through E9. For the purposes of this hearing, the Stipulation and Exhibits A through E9 are received into evidence.

The Respondent's Motion to Dismiss raises two issues:

1. The Petitioner's Petition is barred by a collective bargaining agreement which currently exists between the Petitioner and Respondent; and

2. No industrial dispute exists between the parties.

We will address these issues in reverse order.



Section 48-801(7) of the Nebraska Revised Statutes defines industrial dispute as:

Industrial dispute shall include any controversy concerning terms, tender, or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, or refusal to discuss terms or conditions of employment ...

The issues in the instant case clearly concern association and exclusive representation matters. This Commission has held that it has jurisdiction to act in the determination of an appropriate unit, the holding of an election, or the certification of an exclusive bargaining representative. Alliance Education v. The School District of Alliance , 4 CIR 154 (1980); Wynot Education Association v. The School District of Wynot , Wynot Association of Responsible Teachers, Intervenor , 5 CIR 160 (1981).

The pleadings and the evidence received clearly support the existence of an industrial dispute within the meaning of Section 48-801(7).

A dispute concerning exclusive representation is an industrial dispute as defined in Section 48-801. Teamsters Public Employees Union Local No. 594 v. City of Omaha , 2 CIR 74 (1973). Therefore, Respondent's Motion cannot be sustained on this issue.



The Petitioner, through its Petition, seeks to:

1. Determine that the appropriate bargaining unit for bargaining and voting in the certification election is the certificated teachers employed by the School District, except administrative employees;

2. Hold a certification election pursuant to the rules promulgated by the Commission; and

3.If a majority of the certified teachers in the bargaining unit vote for the Association, certify the Association as the exclusive bargaining agent for said certificated teaching employees of the School District with respect to their wages, hours and conditions of employment.

The Respondent alleges that Petitioner's Petition is barred by virtue of an existing collective bargaining agreement between the Petitioner and Respondent. The Petitioner and Respondent stipulated that they are parties to a collective bargaining agreement covering the 1981-82 academic year, which agreement was executed on July 7, 1981. In addition thereto, it is stipulated that the academic year was established to be August 17, 1981, through May 26, 1982.

The Commission finds the following statutes and rules applicable in the instant case:

1. Section 48-838 - Paragraph 1 provides:

The commission 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 betweeen 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 commission shall certify the exclusive collective bargaining agent for employees affected by Sections 48-801 to 48-823 following an election by secret ballot, which election shall be conducted according to rules and regulations established by the Commission. (Emphasis added.)

2. Rule 4(B)(l)-(6) of the Commission of Industrial Relations provides:

B.Representation Proceedings. A petition concerning only recognition of a labor organization, request for election, or determination of appropriate unit shall be filed in the Representation Docket and shall contain the following:

1. A description of the unit appropriate or claimed to be appropriate for purposes of exclusive representation by the petitioner. Such description shall indicate generally the geographic locations and the classification of employees sought to be included and those sought to be excluded and the approximate number of employees in the unit claimed to be appropriate;

2. The date of recognition or certification, if any, and the experiration date of any applicable agreement;

3. Name, address, and telephone number of each other interested labor organization;

4. A request in writing for an election, which request shall be signed by at least 30% of the employees in the unit claimed to be appropriate and shall show the date of each signature;

a. The Clerk shall accept as evidence for the requisite 30% showing of interest any of the following:

(1)Unrevoked dues deduction authorizations;

(2)Other evidence of current membership;

(3)Original authorization cards or petitions signed and dated within 90 days of the date of submission;

(4)Any combination of the three;

An alphabetized, typed list of the names submitted shall accompany the evidence;

b. The petitioner shall submit with any request for an election a statement specifying the number of employees in the bargaining unit claimed appropriate as of the date of submission:

c. The Clerk shall, upon receipt of a petition for election and accompanying evidence and statement of number of employees in the claimed appropriate bargaining unit (1) advise the employer that it has ten days to submit a typed, alphabetized list of its employees in the claimed unit as of the date of petition filing or nearest payroll date thereto, and (2) direct the employer within five days to post on all bulletin boards normally used to communicate with employees a notice furnished by the Clerk to be reproduced by the employer which shall contain (a) the name of the petitioner, (b) a specification of the bargaining unit claimed appropriate, (c) a statement that any employer within the bargaining unit claimed or any interested labor organization may appear or state his or its interest in the proceedings at any time before the initial hearing, and (d) the address of the Clerk to which communications should be directed. The notice required to be posted herein shall remain displayed until the first hearing. The employer shall certify in its Answer, its compliance with the directive of the Clerk as to posting notice;

d. The Clerk shall enter an order for the Court dismissing any petition for election which the Clerk finds is not supported by the requisite 30% showing of interest;

5. The concise statement of the petitioner's position with reference to any controversy concerning procedure for the conduct of elections; and

6. A concise prayer for the precise relief or order sought. (Emphasis added.)

Section 48-838 is the only statutory reference to contract bar and as shown by the emphasis, applies only to "other parties" seeking representation. In the instant case it is the informally recognized party seeking formal recognition.

This Commission has held many times that National Labor Relations Board, hereafter referred to as NLRB, decisions are helpful, and may be looked to for guidance, but are not controlling. City of Grand Island v. AFSCME , 186 Neb. 711, 185 NW 2nd 860 (1971); Service Employees International Union Local No. 226 v. School District No. 66 of Douglas County , 3 CIR 514 (1978); North Platte Police Officers and E. Clyce Paul v. City of North Platte , 4 CIR 132 (1979).

In General Box Co. 82 NLRB 678,1948-49 CCH NLRB 18815, 23 BNA LRRM 1589, the Board held that an election would normally be granted at the request of an uncertified but currently recognized union, because such union is entitled to the benefits of a certification notwithstanding the employer's recognition of the union's majority status.

This general doctrine of allowing recognized but not certified parties to seek certification has continuously been followed by the NLRB. In Jack L. Williams , 219 NLRB 1045,1974-75 CCH NLRB ¶16126,90 BNA LRRM 1188, the Board stated:

Employer contends there is a contract bar to the election requested by Petitioner by virtue of a collective bargaining agreement in effect between Employer and Petitioner. The contract-bar doctrine applies to a union seeking certification as collective-bargaining representative while a contract is in force with another union. A labor organization which is a party to a contract with the Employer is not precluded thereby from seeking certification as the representative of employees. Accordingly, we find Petitioner's contract with the Employer is no obstacle to the election it seeks.

See also California Inland Broadcasting Co. , 106 NLRB 1259 (1953), 32 BNA LRRM 1670; Heating, Piping & Air Conditioning Contractors , 110 NLRB 261 (1954), 34 BNA LRRM 1634; Jefferson City Cabinet Co. , 120 NLRB 327 (1958), 41 BNA LRRM 1503; Pacific States Steel Corp. , 121 NLRB 641 (1958), 42 BNA LRRM 1408; Central Coat, Apron & Linen Service , 126 NLRB (No. 120), 1960 CCH NLRB ¶8638; Montgomery Ward & Co. , 137 NLRB (No. 26), 1962 CCH NLRB ¶11,199; Community Publications, Inc. , 162 NLRB (No. 74),1967 CCH NLRB ¶21,030.

In the case at bar, the Petitioner is only seeking to be certified. In considering Respondent's Motion, we do not reach any unit questions or other issues raised by Respondent in its Answer.

Section 48-838 and Rule 4(B)(l)-(6) do contemplate are cognized group petitioning for certification. Statutorily there is not a contract bar under the facts and circumstances of the instant case. Rule 4(E)(2)(d) does not apply to the situation where a recognized group is petitioning for certification.

This is a question of first impression in Nebraska and as such, we may look to the NLRB for guidance. As shown above, the strong weight of authority in the private sector is that the Petitioner would not be barred from seeking certification because of an existing contract. The reasoning used by the NLRB in both General Box Co. and Jack L. Williams , supra, would apply in the instant case.

We find that the contract now existing between the Petitioner and Respondent does not operate as a bar to the Petitioner seeking a certification election.

Therefore, the Motion to Dismiss of the Respondent is overruled.

Filed January 28, 1982