9 CIR 214 (1987)


Petitioner, |
Respondent. |

Appearances :

For the Petitiner: Richard H. Hoch

Hoch & Steinheider

Three Professional Plaza

P.O. Box 488

Nebraska City, NE 68410


Timothy W. Nelsen

104 South 12th Street

P.O. Box 98

Nebraska City, NE 68410

For the Respondent: William A. Harding and Jerry L. Pigsley

Nelson & Harding, P.C.

500 The Atrium, 1200 N Street

P.O. Box 82028

Lincoln, NE 68501

Before: Judges Kratz, Cope, and Peetz


On July 10, 1987, the Nebraska City Police Officers Bargaining Unit (petitioner), filed a Petition with the Commission of Industrial Relations requesting that the Commission enter an order "requiring the respondent to enter into collective bargaining with the petitioner." The Petition alleges, inter alia, that the City of Nebraska city (respondent) has voluntarily recognized the petitioner and this claim is specifically denied in respondent's Answer. Although there are other issues presented by the Petition, the parties have agreed to initially submit only the issue of whether or not there has been a voluntary recognition of the petitioner by the respondent. A hearing on this issue was conducted on August 27, 1987; testimony was elicited, and exhibits were introduced.

The facts of the case, with regard to the single issue presented at this time, are as follows: (1) Sometime shortly prior to April 1, 1987, the Police Officers of the City of Nebraska City decided that they should organize for the purpose of negotiating wages, terms and conditions of employment. They formed the Nebraska City Police Officers Bargaining Unit. (2) On April 1, 1987, this organization mailed a letter (Exhibit #P1) to the Mayor and City Council which asked them to appoint a "bargaining committee" to meet with petitioner's committee no later than the middle of April. (3) In response to this letter, Mayor Jack McIntire wrote (Exhibit #P2) that he would be happy to meet with the representatives of the Police Officers on April 13, at 10:00 A.M. (4) This meeting occurred on the scheduled date and those present were a committee of three police officers and the Mayor and Roger McCreary. Mr. McCreary, a member of the City Council, was present at the invitation of the Mayor. None of the other three members of the City Council were invited to attend the meeting, nor were they consulted on, or even informed of, the meeting. (5) At this meeting, the petitioner representatives discussed the wages for Nebraska City police officers and presented the results of a survey which illustrated the wages of the police officers in Nebraska City were lower than police officer wages in comparable cities. The Mayor and Mr. McCreary discussed the police officer wages and referred the petitioner representatives to a survey they had which showed that the police wages at Nebraska City were on a par with police wages at certain other cities they considered to be comparable. No offer was made by either party and the petitioner representatives did not ask the Mayor and Councilman McCreary to recognize the petitioner as the bargaining agent for the respondent's police officer employees. At the close of this meeting, the Mayor said he would consult with the other members of the City Council and report back to them. (6) On June 24, 1987, the Mayor informed the petitioner representatives, by letter (Exhibit P#3), that raises would be given to all city employees on a percentage basis. (7) Mayor McIntire testified that at no time did he, or any other representative of the City Council, advise the petitioner representatives that the respondent recognized the petitioner as the bargaining agent for respondent's police officers. (8) On July 16, six days after the Petition herein was filed, counsel for the petitioner met with the City Attorney regarding the police officer demands. Exhibit P#5 is a letter wherein the City Attorney acknowledges that at that meeting, the petitioner requested the following: an increase in salary, health insurance, one police officer for every 650 people in the community, vacation periods, and compensatory time off. (9) The City Council never took action with regard to the request for recognition by the petitioner. A bargaining committee was never appointed, and the testimony of Mayor McIntire illustrates that he is not familiar with labor unions or with the process of recognizing, or negotiating with, a labor union.

The most critical evidence in this case is the meeting on April 13 between the Mayor and the petitioner's Negotiating Committee. We conclude that the Mayor did not recognize the petitioner as the bargaining representative for the police officers at that meeting and nothing occurred thereafter which constituted voluntary recognition. There was no request for recognition at this meeting; there were no proposals made by either party; and there was none of the ordinary give and take associated with labor negotiations. The meeting consisted mostly of a discussion of two salary surveys, one from each party.

The petitioner's initial letter, which says it is in petitioner's "best interests to collectively bargain with the City," is addressed to both the Mayor and the City Council. It asks "that the City Council appoint a bargaining committee for the City" and that this "Council Committee meet with them." At the time of the April 13 meeting, three of the City Council members had not seen this letter and no bargaining committee had been appointed. the members of the City Council, except for McCreary, had not even been informed of the April 13 meeting.

There is no evidence in this case to indicate the Mayor has authority to recognize a labor organization and we suspect that he does not. The evidence shows that in 1976 when the City of Nebraska City recognized the Nebraska City Municipal Employees Association as the bargaining representative for the employees of the city, this recognition was accomplished through a resolution of the City Council. The entire City Council is entitled to be heard on this issue and there is no evidence to indicate that the members of the Council had given the Mayor the authority to act in their behalf.

The Mayor's lack of familiarity with labor unions and labor negotiations is clear and significant. If the police officers considered the April 13 meeting a negotiating meeting, it is perfectly clear from the evidence that the Mayor did not.

This Commission has considered a similar legal issue on two other occasions, Lockwood Teachers Education Ass'n v. School District #1, Case #650 (1987) and District 15 Education Ass'n v. School District 14, 5 CIR 242 (1981). Both parties claim these two cases as support for their position.

In District No. 15 we held there was a voluntary recognition. The evidence in that case, however, shows a definite give and take between the parties, offers and counter offers, several meetings, and both parties were represented at the meetings by authorized representatives. Those facts do not exist in the instant case.

In Lockwood, the School Board agreed to an informal meeting with the Teachers Education Association, but specified that it was not recognizing the Teachers Association as the bargaining representative for its teachers. Both parties were officially represented at the informal meeting. The teachers presented a salary schedule and fringe benefit package, but the Board, instead of negotiating this package, said only that it intended to meet individually with the teachers and present a specific salary proposal to each of them. Judge Orr held (1) there was no voluntary recognition under these facts and (2) the District #15 case didn't apply because the facts were different.

While neither case is directly applicable, the facts of the instant case more closely resemble Lockwood than District 15. The June 3 "pivotal" meeting in Lockwood is like the April 13 meeting, also pivotal, in the instant case. Both were informal meetings, called for the purpose of discussing the wage schedule of certain employees. While in Lockwood the Board specifically stated it was not recognizing the Teachers Association and nothing of this nature was ever stated in the instant case, we do not consider this difference significant. The evidence indicates that neither McIntire nor McCleary understood the procedures for, and the significance and effect of, union recognition. Their relationship with the Police Officers had not advanced as far as the relationship between the School Board and Teachers had advanced in Lockwood.

One significant fact, favorable to respondent and not present in either of these cases, is the authority, or lack of authority, of the meeting participants. While the committees in both Lockwood and District 15 were authorized representatives of their respective organizations, only the police officers were authorized representatives in the instant case and Mayor McIntire did not represent to the officers that he and Mr. McCreary had any authority to do anything other than listen to what they had to say.

McIntire did not have authority from the City Council to negotiate in its behalf. He did not say he had such authority, and he didn't say anything or do anything to indicate he had this authority. Under this circumstance, it would be difficult for us to conclude that there was a voluntary recognition of the respondent by the City Council, particularly when such a conclusion would bind three members of the City Council, a majority, to a very significant action that they knew absolutely nothing about.

Entered September 23, 1987.

1 In Ednor Home Care, Inc. , 276 NLRB 392, the National Labor Relations Board indicated that a significant factor in the determination of union recognition is "serious give and take negotiations."

2 In Ednor , it was considered significant to a determination that the company had not voluntarily recognized the union that the company owner never "said anything from which the intention to recognize the union can reasonably be inferred."