7 CIR 91 (1983)


NEBRASKA, A political | REP. DOC. NO. 169
subdivision; GRETCHEN |
Commissioners of Dakota |
County, Nebraska, and |
BETTY BARNES, County Assessor |
of Dakota County, Nebraska; |
Sheriff of Dakota County, |
Nebraska; ROBERT GIESE, |
County Treasurer of Dakota |
County, Nebraska; TED PIEPHO, |
County Clerk of Dakota |
County, Nebraska, |
Plaintiffs, |
LOCAL 2049-A and |
Defendants. |

Appearances :

For the Plaintiffs: James C. Hanks

830 Frances Building

Sioux City, Iowa

For the Defendant: John B. Ashford

300 South 19th Street

Omaha, Nebraska

Before : Judges Davis, Gradwohl, and Orr


This matter came on for hearing on Plaintiffs' Petition for Decertification. Plaintiffs' Petition states that Plaintiffs believe that an industrial dispute exists as to representation by the Defendants of the employees working for the Plaintiffs. The Commission has jurisdiction of the parties and of the subject matter.

Section 48-811, R.R.S. 1943, states "any employer,... when any industrial dispute exists between parties as set forth in section 48-810, may file a petition with the Commission of Industrial Relations invoking its jurisdiction." In Board of Public Works, North Platte, Nebraska v. IBEW, Local 1536, 2 CIR No. 97 (1974), the Commission interpreted the above section as authorizing an employer to file a decertification petition with the Commission when there is an industrial dispute.

The Commission Rule 4(E) sets out the proceedings to determine if a labor organization shall cease to be the representative. It states that a petition by an employer shall contain "A detailed statement of why the employer believes an industrial dispute exists as to representation in the described unit." The Commission has not yet interpreted Rule 4(E) under circumstances similar to the present case.

It is well settled that National Labor Relations Board decisions and promulgated policies are helpful and may be looked to for guidance but are not controlling in making determinations under the Nebraska Commission of Industrial Relations statutes. See City of Grand Island v. AFSCME, 186 Neb. 711, 185 N.W.2d 860 (1971). Under Section 9(C)(1)(B) of the NLRA an employer may file what the NLRB calls an RM petition if a union makes a claim of representation and the employer has reasonable cause to question that claim. The procedure followed by the NLRB is set out in United States Gypsum , 161 NLRB 601, 63 LRRM 1308 (1966). In that case the NLRB stated "In petitioning for such an election, an employer, under present Board practice, must demonstrate by objective considerations that it has some reasonable grounds for believing that the union has lost its majority status since its certification." Id . at 601, 63 LRRM at 1308-09. The good faith doubt that needs to be shown by the employer as to the union majority support can be established by a combination of factors that standing alone would not be sufficient. National Cash Register Company v. NLRB, 494 F.2d 189 (8th Cir. 1974).

Plaintiffs in requesting a decertification election base its good faith doubt as to the Union's majority status on the following facts: 1) A petition has been signed by 21 of its employees authorizing a decertification election and that it was attached to a Petition filed in the Commission (Case No. 515) by two of the employees requesting the Commission conduct such election, and 2) there are only 10 union dues paying members in a bargaining unit of 33 employees.

The Commission, at the request of the Plaintiff, took judicial notice of the contents of the file in Case No. 515 and that Case No. 515 had been dismissed because the Plaintiffs in that case had failed to appear. See Sections 48-809, 48-812, 48-817 and 27-201.

"Section 27-201 states:

(1) This rule governs only judicial notice of adjudicative facts.

"(2) A judicially noticed fact must be one not subject to reasonable dispute in that it is either (a) generally known within the territorial jurisdiction of the trial court or (b) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

"(3) A judge or court may take judicial notice, whether requested or not.

"(4) A judge or court shall take judicial notice if requested by a party and supplied with the necessary information.

"(5) A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

"(6) Judicial notice may be taken at any stage of the proceeding."

The Nebraska Supreme Court interpreted this section in State Security Savings Co. v. Pelster, 207 Neb. 158, 296 N.W.2d 702 (1980). In that case, the court, at the request of defendants, took judicial notice of the entire file in another case which had been dismissed by Order of the court prior to that case. The Supreme Court stated that:

"First of all, as stated in Witzenberg v. State, 140 Neb. 171, 178, 299 N.W. 533, 537 (1941): 'The general rule is that, while a court will take judicial notice of its own records, it will not in one case take judicial notice of the record in another case. Fassler v. Streit, 92 Neb. 786, 139 N.W. 628. However, 'There may be cases so closely interwoven, or so clearly interdependent, as to invoke a rule of judicial notice in one suit of the proceedings in another suit.' "

Id. at 161, 296 N.W.2d at 704.

The instant case is one for a decertification election filed by the employer and the judicially-noticed case involved a decertification election request filed by some of its employees. The cases are so closely interwoven as to allow judicial notice to be taken of the contents of the file of that case.

The Nebraska Supreme Court opinion states further: "Secondly, the security agreement is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Id. at 161, 296 N.W.2d at 704. The petition signed by the employees in Case No. 515 was administratively determined by the Clerk of the Commission to be valid pursuant to Section 48-804.01. See Clerk's Report to Commission entered May 9, 1983. Furthermore, the Clerk's Report stated that the necessary 30% showing of interest has been obtained.

Plaintiffs also rely on the fact that only 10 employees have authorized union dues to be deducted from their paycheck. According to the records of the County Clerk there were 29 employees paying dues in October 1982 and in April 1983 it had dropped to 10 employees.

We find that there is sufficient basis to the Plaintiff's good faith doubt as the Union's majority status and that an election shall be ordered to resolve this question of representation.

Since the hearing in this matter the defendants have filed with the Commission a Motion for Protective Order that asks the Commission to order the current collective bargaining agreement to remain in full force and effect after July 1, 1983, since there is a pending industrial dispute involving that agreement. Plaintiffs filed a Response to Motion for Protective Order. The Commission has further discussed the matter of a protective order with counsel.

IT IS THEREFORE ORDERED that an election within the bargaining unit shall be held as soon as possible. Judge Harvey D. Davis is appointed as the Commission's Representative for such election. Jerry L. Pigsley is appointed hearing examiner to determine initially all questions arising during the course of the election. The election shall be under the immediate supervision of the Clerk of the Commission. The parties shall confer with the clerk to agree upon or have determined all questions concerning the election not provided for in Rule 9.

Pursuant to Section 48-816(1) and oral agreement of the parties, the Commission ORDERS that the wages and conditions of employment existing under the current collective bargaining agreement remain in effect until the results of the election have been certified by the Commission or until the further order of the Commission.

All Judges assigned to the panel in this matter join in the entry of the Opinion and Order.

Filed June 20, 1983