15 CIR ____ (2007) 

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

THE CITY OF GRAND ISLAND, ) CASE NO. 1161
NEBRASKA, )
)
                                  Petitioner, ) ORDER ON REQUEST FOR TEMPORARY RELIEF
         v. )  
)  
INTERNATIONAL ASSOCIATION OF )
FIREFIGHTERS LOCAL UNION NO. 647, )
  )  
                                  Respondent. )

 APPEARANCES:

For Petitioner: William A. Harding
Harding & Shultz
800 Lincoln Square
  121 South 13th Street
  P. O. Box 82028
  Lincoln, NE  68501-2028
  Dale Shotkoski
  P. O. Box 1968
Grand Island, NE  68802-1968
For Respondent: John E. Corrigan
Dowd, Howard & Corrigan, L.L.C.
1411 Harney Street, Suite 100
Omaha, NE   68102

Before:  Commissioners Orr, Burger and Lindahl

ORR, C: 

            This matter comes before the Commission upon the Petitionerís Request for Temporary Relief in its Amended Petition filed on October 3, 2007. A telephonic hearing was held on October 9, 2007 before the Honorable Jeffery L. Orr for the purpose of allowing the parties to present their arguments regarding the Petitionerís request that the Commission order the Respondent to withdraw the Notice of Claim filed with the Grand Island City Clerk and also to withdraw the Complaint filed in the District Court for Hall County as well as an immediate cease and desist order requiring the same.

            The Petitioner argues that it was a prohibited practice under Neb. Rev. Stat. ßß 48-819 and 48-825 for the Respondent to file a declaratory judgment on several of the issues raised in Case No. 1130. The Respondent argues the Commission should dismiss the prohibited practice claim.

This is not the first time this argument has been brought to the Commission. In City of Grand Island Nebraska v. Ronald Teichmeier, Intíl Assín of Firefighters Local No. 647, and Randy Throop, 12 CIR 321 (1997), the Petitioner argued that all of the Respondents had committed a prohibited practice within the meaning of Neb. Rev. Stat. ß 48-824(3)(b) and (c) (Supp. 1995) by:

Filing a declaratory judgment action in the District Court of Hall County, Nebraska seeking to repudiate the permanent residency requirements of the contract between the Petitioner and Respondent Local 647; and Requesting injunctive relief in the District Court of Hall County, Nebraska to enjoin the enforcement of the permanent residency requirements of the contract between the Petitioner and Respondent Local 647.

            The Commission analyzed the Petitionerís case stating that any attempt by the Commission, directly or indirectly, to force the dismissal of the District court action was beyond the power of the Commission. While the Commission noted that it was flattered by the Petitionerís suggestion that the Commission has the power to require a termination of proceeding in the District Court, the Commission declined to embark on implementing such thoughts, stating that such invitations must come from constitutional amendments. The Commission laid forth its jurisdictional beginnings as the Commission, originated from Article XV, section 9, of the Constitution of the State of Nebraska and from statutes adopted by the Nebraska Legislature implementing the Constitutional provisions. The Commission succinctly commented that nowhere in the Constitution is the Commission given any power or authority to directly or indirectly order dismissal of any action pending in any court of the State of Nebraska. The Commission then stated that the Constitution clearly does not include the Commission in the judicial branch of state government and specifically prohibits any exercise of power belonging to the judiciary. The Commission found that for the Commission to attempt, directly or indirectly, to require dismissal of an action pending in the judicial branch of state government it would be in violation of the Constitutionís separation of powers provisions. Accordingly, the Commission determined that Teichmeierís right to seek relief in the District Court of Hall County, Nebraska, cannot be limited or controlled by this Commission. The Commission stated that any attempt to accomplish such a result indirectly was also beyond the constitutional powers of the Commission. The Commission concluded that in light of its lack of jurisdiction, there was no need to reach the other issues presented by the pleadings or evidence. Therefore, the Commission denied the Petitionerís request and dismissed the Petitionerís Petition.

            Furthermore, in Transport Workers v. Transit Authority of Omaha, 2l6 Neb. 455, 344 N.W.2d 459 (1984), the Nebraska Supreme Court found that district courts are the proper forum to enforce temporary orders of the Commission. In Transport Workers, the parties negotiated for a new contract while under an existing contract that was to end on June 30, 1983. On June 30th the parties declared impasse and the Transport Workers Union filed a wage petition and a request for a temporary order requiring the employer to maintain the employment status of the employees. On July 1, 1983 the employer implemented unilateral changes as to uniform and tool allowances. On July 13th the Commission issued a temporary order stating that ďthe employment status of employees shall not be altered in any way pending disposition of the Petition herein by the Commission.Ē After the Commissionís order was entered the employer then made an additional change to the existing terms and conditions of employment. The employees then sought a district court order enforcing the Commissionís temporary order. The district court denied the employees request and the employees appealed to the Supreme Court.

                In Transport Workers, the Supreme Court reversed and remanded finding that the district court should have entered orders carrying out the orders entered by the CIR. The Supreme Court succinctly stated what it determined the issue to be in the first sentence of the Transport Workers opinion, ďwe are asked to determine what if any authority the Commission of Industrial Relations (CIR) has to enter temporary orders concerning wages, hours, and terms and conditions of employment while the CIR is attempting to resolve a labor dispute pending before it. (emphasis supplied)Ē 216 Neb. at 455.

            The instant case is similar to City of Grand Island Nebraska v. Ronald Teichmeier, Intíl Assín of Firefighters Local No. 647, and Randy Throop, 12 CIR 321 (1997). Neither the Commissionís statutes nor the Constitution of Nebraska have been amended since 1997 regarding its jurisdiction as it relates to this case. The Commission still clearly does not have the jurisdictional authority to directly or indirectly provide such relief to the Petitioner. Furthermore, it is clear according to Transport Workers that filing a declaratory judgment with the District Court of Hall County is an appropriate forum, as the Commission does not have Case 1130 currently pending before it. Therefore, the Commission finds that in light of its lack of jurisdiction, there was no need to reach the other issues presented by the pleadings or evidence.

            The Respondent also requests attorney fees in its answer. The Commission finds that the evidence does not rise to the level of awarding such fees. Therefore, the Commission denies the Respondentís request for attorney fees.

IT IS, THEREFORE, ORDERED that the Petitionerís request for relief should be, and hereby is, denied and that the Petitionerís Petition should be, and hereby is, dismissed. The Commission also denies Respondentís request for attorney fees.

All commissioners assigned to the panel in this case join in the entry of this Order.

Entered October 15, 2007.