12 CIR 15 (1992)


Affiliated with the |
Petitioner, |
A Municipal Corporation, |
Respondent. |


For the Petitioner: Bruce G. Mason

Bradford, Coenen, Ashford & Welsh

1850 First National Center

1620 Dodge St.

Omaha, NE 68102

For the Respondent: Kent N. Whinnery

Deputy City Attorney

804 Omaha/Douglas Civic Center

1819 Farnam St.

Omaha, NE 68183

Before: Judges V. Moore, Orr, F. Moore



The Omaha Police Union Local 101 ("Union") filed a Petition on July 10, 1992, seeking a determination pursuant to Neb. Rev. Stat. §§ 48-801(7), 48-810 and 48-816(2) involving a dispute over the failure of the City of Omaha ("City") to bargain regarding the unilateral alteration of the implied terms of the collective bargaining agreement then in force, requesting a finding of a failure to bargain in good faith, and requesting a permanent injunction enjoining the alterations of the conditions of employment until good faith bargaining has been undertaken.

The City by its answer states that the matter at issue was tried in the Douglas County District Court in a case captioned Patrick Kuhl, James Roberts, Jack Caniglia, and Omaha Police Union Local 101 v. City of Omaha, et al., Doc. 898, Page 238; that therefore the doctrine of res judicata and collateral estoppel applies and the Union's petition should be dismissed.

On the 9th day of September, 1992, the City filed a Motion for Summary Judgment based on the pleadings and two affidavits. On the 22nd day of September, 1992, the Union filed a Motion for Summary Judgment based on the pleadings and an affidavit which incorporated a copy of the Bill of Exceptions containing the testimony and exhibits received by the District Court in Kuhl v. City of Omaha.


On June 5, 1991, Police Chief James Skinner issued a general order, No. 33-91, the purpose of which was to designate those individual sworn officers who will work holidays and stating a policy that only sworn personnel assigned to 24-hour functions will work on holidays unless otherwise determined by the Chief of Police. The order further stated that all sworn personnel not on the card system (24-hour employees) would not work holidays unless authorized by the Chief. As a result of this order some 150 police officers, including the named plaintiffs, have been unable to work holidays at their discretion and collect 20 hours pay for 8 hours work. The Chief issued directives denominating who would and would not work on various holidays after determining who were "essential personnel" with regard to public safety. (Findings of Fact by Judge Carlson in his order in Kuhl v. City of Omaha).

In Kuhl v. City of Omaha the Union brought action seeking injunctive relief and contesting the general order relative to holiday work, alleging that the order was a violation or breach of certain articles of the labor agreement then in force, specifically Article 12 - Layoffs, Article 15 - Hours of Work and Duty Shifts, and Article 20 - Holidays. Further, that Chief Skinner's order was a violation of the due process and equal protection clauses of the Fourteenth Amendment plus an impairment of the Plaintiffs' contractual rights under Article 1, Section 10, all provisions of the United States Constitution.

The City moved to dismiss the State District Court action for several reasons. Among those reasons was the City's contention that the matter constituted an industrial dispute as the term is defined and applied in Neb. Rev. Stat. § 48-801. The City argued that the Commission of Industrial Relations should have sole and exclusive jurisdiction over the industrial dispute. The Union argued that the District Court did have jurisdiction over the cause of action, and the District Court ruled that the cause of action should not be dismissed on jurisdictional grounds.

The matter was tried on January 27 and 28, 1992. In his order Judge Carlson treated the contract arguments, contract law, constitutional arguments, and bargaining and burden as presented by the parties, and then found that the Plaintiffs did not sustain the burden of proof to support their recovery. The Petition was dismissed by Order dated May 29, 1992, and the Union appealed to the Nebraska Court of Appeals.

A labor agreement entered into between the City and the Union was negotiated during the period of October 17, 1991 and May 5, 1992, and was approved by the Omaha City Council. During the course of those negotiations, the Union submitted a proposal to address the "holiday" issue, which the parties understood to include the issue raised in the District Court litigation. Subsequent negotiations resulted in the City presenting a counter-proposal to the Union demand on the issue, but, before negotiations concluded, the Union withdrew its demand concerning the holiday issue.


It is the Union's position that it is entitled to mandatory bargaining prior to a unilateral decrease in compensation which is the effect of Chief Skinner's order and that the doctrine of res judicata does not bar petitioner's action. The reasons given by the Union are as follows:

The Commission lacks the jurisdiction to determine either contract rights or constitutional rights, which conversely the District Court has jurisdiction to determine and did determine.

The issue of duty to bargain is legislatively the province of the Commission and the District Court is without jurisdiction to entertain a cause of action seeking a bargaining order, which the District Court did not entertain or determine.

The Doctrine of res judicata does not apply to issues raised before the District Court (i.e. necessity of bargaining) which the Court did not possess jurisdiction to determine and in fact did not determine.

The thrust of Plaintiff's argument is that apart from the findings of the District Court, the issue of whether there was and still is a duty to bargain on the part of the City prior to a unilateral change of the implied provisions of the contract and the ongoing continuing change at each subsequent designated holiday, is solely the province of the Commission and that therefore, the subject matter of the present action was entirely outside the jurisdiction of the District Court and its decision is not res judicata as to the present action before the Commission.

The Union argues in its brief that the District Court decision, that the police officers had neither a contractual or constitutional right to work holidays, bars any subsequent cause of action on either point, but the Union remains free to litigate the issue of the duty to bargain which was not at issue in the District Court case and it could not have raised the issue in any event due to the lack of the District Court's jurisdiction. The Union further argues that to apply res judicata, collateral estoppel or issue preclusion to bar the instant case before the Commission would frustrate the legislative intent in the Commission's creation and further allow respondent to escape its duty to bargain, which was never decided by the District Court.

In addition, the Union argues that good faith bargaining has not been undertaken subsequent to Chief Skinner's order of June 5, 1991, contrary to the City's contention that it has taken place. In arguing that res judicata, or issue preclusion does not apply to this case, the Union relies on Flobert Industries, Inc. v. Stuhr, 216 Neb. 389, 393, 343 N.W.2d 917, 920 (1984) in which the Court stated:

This court, having carefully reviewed the evidence and exhibits from the action in Antelope County, finds that the plaintiff's contention that res judicata, or more aptly defined as "issue preclusion," applies to this case is without merit. Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances: "(3) A new determination of the issue is warranted by differences in the quality of extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them." Restatement (Second) of Judgment § 28 at 273 (1982).

Comment d. of the Restatement, supra at 279 reads as follows: "Courts of the same state (Subsection (3)). Not infrequently, issue preclusion will be asserted in an action over which the court rendering the proper judgment would not have had subject matter jurisdiction. In many such cases, there is no reason why preclusion should not apply; the procedures followed in the two courts are comparable in quality and extensiveness, and the first court was fully competent to render a determination of the issue on which preclusion is sought. In other cases, however, there may be compelling reasons why preclusion should not apply. For example, the procedures available in the first court may have been tailored to the prompt, inexpensive determination of small claims and thus may be wholly inappropriate to the determination of the same issues when presented in the context of a much larger claim...[o]r the legislative allocation of jurisdiction among the courts of the state may have been designed to insure that when an action is brought to determine a particular issue directly, it may only be maintained in a court having special competence to deal with it. In such instances, after a court has incidently [sic] determined an issue that it lacks jurisdiction to determine directly, the determination should not be binding when a second action is brought in a court having such jurisdiction. The question in each case should be resolved in the light of the nature of litigation in the courts involved and the legislative purposes in allocating jurisdiction among the courts of the state."


After reviewing the pleadings, the affidavits and the bill of exceptions in Kuhl v. City of Omaha and considering the briefs submitted by the parties, the Commission finds the issue presented to it is substantively the same as the issue presented to the District Court. The facts presented to this Commission and to the District Court are the same and remain the same irrespective of how the causes of action are labeled. The question of the duty of the City to negotiate the implied contractual change regarding holiday pay is an integral part of the issue presented to the District Court, and therefore, any determination of the District Court must necessarily include the issue of mandatory bargaining prior to a unilateral decision to decrease compensation and cannot now be considered by this Commission independent of the issue as decided by the District Court. For the Commission to find that there is a mandatory duty to bargain regarding "holiday pay," it must find that there is a contractual duty regarding "holiday pay." The District Court found that there was no such contractual duty. We therefore find that, since the parties are substantially the same and the issue which has been decided on the merits is the same, the doctrine of res judicata is appropriate. See Robinson v. Dawson County Irrigation Co., 142 Neb. 811, 8 N.W.2d 179 (1943).

In addition, the issue of the duty to bargain prior to unilateral change of an implied contract provision was material to and could have been raised in the District Court case and therefore the doctrine of res judicata is appropriate. See Blazek v. City of Omaha, 232 Neb. 562, 441 N.W.2d 205 (1989).

We do not believe that Flobert Industries, Inc. v. Stuhr applies herein. Any difference in the quality or extensiveness of the procedures or factors of jurisdiction are not, in the Commission's opinion, material to the inquiry here.

We also find that the negotiations between the Union and the City leading to a labor agreement on May 5, 1992 obviates the necessity for the parties to continue to negotiate the "holiday" issue.

For the reasons given above, we find that Petitioner's Motion for Summary Judgment is overruled. Respondent's Motion for Summary Judgment is sustained.


All judges assigned to the panel in this case join in the entry of this Findings and Order.

Entered November 24, 1992.