8 CIR 151 (1985)


Plaintiff, |
Defendants. |


For the Plaintiff: James H. Truell

Ahlschwede, DeBacker & Truell

Plaza Square Building

207 North Pine

Grand Island, Nebraska 68802

For the Defendant, Theodore L. Kessner

Central Nebraska Mark D. McGuire

Education Association: Crosby, Guenzel, Davis, Kessner & Kuester

400 Lincoln Benefit Building

Lincoln, Nebraska 68508

For the Defendant, Gerald T. Whelan

Central Community Whelan, Foote & Scherr, P.C.

College: P.O. Box 2004

Hastings, Nebraska 68901

Before: Judges Orr, Kratz and Mullin.


The plaintiff, Central Community College Education Association, filed a petition on May 28, 1985 seeking decertification of the defendant, Central Nebraska Education Association (hereinafter called "CNEA") and certification of itself as the exclusive bargaining representative of the bargaining unit described as:

All fulltime teaching employees of Central Nebraska Technical Community College, whose primary responsibilities are:

1.The organization and management of the classroom or physical area in which the learning experience of students takes place;

2.The assessment and diagnosis of individual educational needs of students;

3.The planning, selecting, organizing, prescribing and directing of the learning experiences of students;

4.The planning of teaching strategies and selection of available materials and equipment to be used; and

5.The evaluating and reporting of student progress, excluding parttime and temporary employees and administrators.

The defendant, Central Community College, was joined as a party defendant in this case as the employer of the bargaining unit's members. Central Community College stated in its Answer that it "takes no position with regard to the question of the bargaining unit" and that it "will continue to deal with whichever agent the Court [sic] determines to be the bargaining agent."

The facts are not in dispute. The defendants, CNEA and Central Community College, were parties to an existing collective bargaining agreement for the 1984-85 school year that was due to expire on August 14, 1985. The plaintiff filed its decertification petition on May 28, 1985. After filing the petition, the plaintiff improperly served the defendants by mailing copies of the Petition and Notice of Pendency to the defendants' respective attorneys.

Subsequently, the plaintiff perfected service by June 19, 1985. On June 24, 1985, the defendants, CNEA and Central Community College, entered into a new collective bargaining agreement covering the 1985-86 school year. The defendant, CNEA, has raised the contract bar doctrine as a defense and contends that the plaintiff's decertification petition is barred and should be dismissed.

The contract bar doctrine, which was created in an attempt to stabilize the employer-union relationship, generally prevents a new bargaining representative from being able to displace the current bargaining representative during the existence of a valid labor agreement. See In Re: South Sioux City Municipal Electrician's Assoc. , 3 CIR 68, 69 (1975); see also, 1 Morris, The Developing Labor Law , 2nd Ed.(1983), pp. 361-362. However, in order to provide employees with an opportunity to freely choose their bargaining representative at reasonable intervals, the Commission, under Rule 4 E.2.d. (we take judicial notice of the Rules of the Commission of Industrial Relations which are marked as Commission Exhibit "A" and are hereby received into evidence), has established a specific time period during which a decertification petition can be filed by a bargaining representative prior to the expiration date of a current agreement. This time period is commonly known as the "open period". Commission Rule 4 E.2.d. provides, in part, that a decertification petition may only be filed between the 120th and 60th days preceding the termination of an existing agreement, contract or understanding. The period after the 60th day to the date the agreement expires is called the "insulated period." Decertification petitions are not allowed during the insulated period so that the existing representative and the employer may negotiate a new agreement free from the rivalry and uncertainty caused by a challenge from a competing bargaining representative. See, In Re:South Sioux City Municipal Electrician's Assoc. , 3 CIR 68, 69 (1975). If a new agreement is reached during the insulated period, a new contract bar arises. Id . at 70.

Both the plaintiff and the CNEA agree that the plaintiff's petition was filed during the "open period". The CNEA asserts, however, that the contract bar doctrine prevents the plaintiff's challenge to its representative status because the plaintiff did not perfect service until June 19, 1985, which was during the insulated period. The plaintiff contends that service did not need to be perfected during the open period so long as its petition was filed during that time period.

We agree with the plaintiff. The legislature clearly intended to make the date the petition is filed, rather than the date service is perfected, the operative date for conferring jurisdiction on the Commission of Industrial Relations.

Nebraska Revised Statute Section 48-811 states, in part:

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 Commission of Industrial Relations invoking its jurisdiction . (emphasis added).

Furthermore, Nebraska Revised Statute 48-813(1) provides, in part:

Whenever the jurisdiction of the Commission of Industrial Relations is invoked, notice of the pendency of the proceedings shall be given in such manner as the Commission shall provide for serving a copy of the petition and notice of filing upon the adverse party.

The clear meaning of these sections is that a case is commenced before the Commission when a petition is filed, not when service of process is perfected.

In addition, Commission Rule 4 E.2.d. requires only that the petition be filed within the open period. The rule, like the statutes, does not require service to be perfected during the open period.

Proceedings before the Commission shall conform to the code of civil procedure applicable to the district courts of the State of Nebraska. See Section 48-812. In making our ruling, we also rely on Section 25-217 (commencement of actions) and Section 25-225 (tolling of statutes of limitations) which provide that the operative date for the commencement of a case is the date the petition is filed and not the date service is perfected.

Section 25-217 provides:

An action shall be deemed commenced, within the meaning of this chapter, as to the defendant, on the date the petition is filed with the court if proper service is obtained within six months of such filing.

Also, Section 25-225 states:

For the purposes of determining whether an action has been commenced within the time allowed by statutes for limitation of action, the filing of a petition shall be deemed a commencement of the action if proper service is obtained within six months of such filing.

Under the code of civil procedure, the plaintiff is given six months to perfect service. If service is perfected within this time, the case is deemed to be commenced on the date the petition was filed.

Neither Section 48-801, et. seq., nor the Rules of the Commission prescribe a time limit for perfecting service of process.

We hold that a decertification petition, filed during the open period, invokes the jurisdiction of the Commission even though service is not perfected during that time period.

However, because of the importance of the concepts of the contract bar and the insulated period as previously set out, the plaintiff must perfect service within a reasonable time, exercising due diligence. Plaintiff perfected service within four days after the close of the open period.

We find that in this instance the plaintiff's petition was filed during the open period and that service of process was perfected within a reasonable period of time.

We further find that the plaintiff has made a sufficient showing of interest to entitle it to an election as stated in the Clerk's Report to the Commission filed June 5, 1985.

The other issues raised by the parties pleadings were resolved prior to the submission of this case for resolution by the Commission.

IT IS, THEREFORE, ORDERED that an election shall be held herein as soon as possible. The Honorable Jeffrey L. Orr is appointed as the Commission's representative for the election. Charles R. Gentile is appointed hearing examiner to determine initially all questions arising during the course of the election. The election shall be held under the immediate supervision of the Clerk of the Commission. The parties will be contacted by the Clerk to agree upon or to have determined all questions concerning the election not provided for in Rule 9.

Entered October 24, 1985.