|OMAHA POLICE UNION|||||CASE NO. 801|
|LOCAL 101, Affiliated with the||||
|INTERNATIONAL UNION OF||||
|THE CITY OF OMAHA,||||
|NEBRASKA, A Municipal||||
For the Petitioner: Bruce G. Mason
Ross & Mason, P.C.
8420 West Dodge Road, Suite 105
Omaha, Nebraska 68114
For the Respondent: Kent N. Whinnery
Deputy City Attorney
804 Omaha/Douglas Civic Center
1819 Farnam Street
Omaha, Nebraska 68183
Before: Judges Orr, Cope and V. Moore Jr.
This matter comes before the Commission upon the Respondent's Motion In Opposition to the Petitioner's request for Temporary Restraining Order, and Resistance to the Temporary Restraining Order Entered filed on December 17, 1990. On December 12, 1990, the Petitioner filed a Motion for Temporary Restraining Order asking the Commission to enjoin the Respondent from changing hours and days off for various personnel of the Criminal Investigation Bureau (CIB) of the Omaha Police Department. The Commission on December 13, 1990 issued a Temporary Restraining Order ordering that the employer not alter the employment status of employees, including, but not limited to, changes in the hours of work and days off for certain employees, pending disposition of the Petition filed herein. On January 4, 1991, a hearing was held on the Respondent's Motion in Opposition and the parties presented evidence on the issue of the appropriateness of the Temporary Restraining Order.
The City argues that the Temporary Restraining Order issued by the Commission should be dissolved on procedural grounds and also on the basis of the factual situation present in this case. Procedurally, the City contends that the Temporary Restraining Order issued was contrary to the mandate of Section 48-816.02. Neb. Rev. Stat. 48-816.02 provides:
In any request for temporary relief under the Industrial Relations Act, the commission shall mandatorily hold the initial hearing within ten days from the date of the filing.
A clear reading of this statute and its legislative history indicates that the Commission has no discretion as to the holding of a hearing once a request for temporary relief has been filed. The Commission should have held a hearing in the present case prior to issuing a temporary order and shall, henceforth, conduct a hearing within ten days of the filing of a request for temporary relief under the Industrial Relations Act, unless the parties agree otherwise.
As to the merits of the necessity of a temporary restraining order in the present case, the Petitioner contends that the change in hours and days off for CIB personnel, contemplated by the City, will violate Sections 48-811 and 48-816 and should be enjoined pending resolution of this industrial dispute. Section 48-811 provides that:
...No adverse action by threat or harassment shall be taken against any employee because of any petition filing by such employee, and the employment status of such employee shall not be altered in any way pending disposition of the petition by the commission.
Section 48-816(1) provides:
....The commission shall have power and authority upon its own initiative or upon request of a party to the dispute to make such temporary findings and orders as may be necessary to preserve and protect the status of the parties, property, and public interest involved pending final determination of the issues.
The Supreme Court has interpreted these statutes and held that together they give the Commission the authority to issue temporary orders restraining the employer from changing terms and conditions of employment during the pendency of a dispute, Transport Workers v. Transit Authority of Omaha , 216 Neb. 455, 344 N.W.2d 459 (1984). This statutory grant of authority is, however, limited in nature and can not be used or abused to give either party more rights then they had at the time of the filing of the petition.
The Petition in this present case was filed on November 19, 1990 when the terms and conditions of employment for the employees were enumerated in a collective bargaining agreement set to expire on December 22, 1990. Thus, under the statute, it is those terms and conditions which qualify as the status quo and which the Commission may "preserve and protect" by temporary order.
The collective bargaining agreement between the parties provides that "Except where limited by express provisions elsewhere in this Agreement" the City has "The right to establish, allocate, schedule, assign, modify, change, and discontinue City operations, work shifts, and working hours." Both parties testified that there were no other express provisions restricting the City's right to change the work hours and days off of the CIB personnel in the manner contemplated.
It is clear from this language and from the testimony that absent the filing of this Petition, the City would have had the contractual authority to implement its planned change in the CIB. The question is then whether by filing a petition with this Commission the union can negate that management right reserved by the contract. We find that the Petitioner can not be given any greater rights after the filing of the Petition then they would have otherwise had. Therefore, the City can not and should not be restrained from exercising rights that are an integral part of the status quo that the Commission is called upon to protect.
Furthermore, the testimony indicates that a change of this nature was contemplated and discussed with members of the department prior to the start of the negotiation process and the filing of this Petition. There was no evidence, nor any allegation, that this change was in retaliation for any union activity or intended to coerce or intimidate employees in the exercise of their statutory rights.
IT IS THEREFORE ORDERED that the Temporary Restraining Order entered on December 13, 1990 be and is hereby dissolved.
Entered January 22, 1991.