12 CIR 321 (1997).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS


CITY OF GRAND ISLAND, | CASE NO. 915
NEBRASKA, |
|
Petitioner, |
|
v. | FINDINGS AND ORDER
|
RONALD TEICHMEIER, INTERNATIONAL |
ASSOCIATION OF FIRE FIGHTERS |
LOCAL NO. 647, and RANDY THROOP, |
|
Respondents. |

Appearances:

For the Petitioner:

For the Respondents:

BEFORE: Judges Cullan, McFarland and DeLay

CULLAN, J:

By this action the Petitioner, City of Grand Island, Nebraska, seeks an Order of the Commission of Industrial Relations finding that Ronald Teichmeier, a fire fighter employed by Petitioner; the International Association of Fire Fighters Local No. 647, the collective bargaining agent for Grand Island Fire Fighters; and Randy Throop, President of Local 647, have all committed a prohibited practice within the meaning of Neb. Rev. Stat. § 48-824(3)(b) and (c) (Supp. 1995) by:

  1. 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

  2. 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.

Petitioner requests the Commission to find that the suit in the District Court should be dismissed and to Order Teichmeier, Local 647, and Throop to cease all actions having the effect of repudiating permanent residency requirement of the collective bargaining agreement between Grand Island and Local 647.

In their Answer, Respondents allege that Teichmeier's action seeking a declaratory judgment in the District Court to determine how the residency requirements in the collective bargaining agreement apply to his particular factual situation and preventing his termination before the District Court rules.

Local 647 and Throop allege that they are not parties to the District Court action and in effect that they cannot cause the District Court suit to be dismissed. An issue as to the jurisdiction of the Commission in this matter was raised by Teichmeier.

Neither Throop nor Teichmeier are parties to the collective bargaining agreement. Teichmeier and Throop are members of the collective bargaining unit and of Local 647. Throop is President of Local 647.

A Journal Entry from the District Court, hereby received as an exhibit, shows that trial in the District Court action was held on August 30, 1996, and the court rendered its decision on September 20, 1996. The court determined that Teichmeier is not a resident of Hall County, Nebraska, that he resides at a home near Ravenna, Nebraska, and not at a residence located in Grand Island, Hall County, Nebraska. The record before the Commission is silent as to whether an appeal has been taken to the Nebraska Court of Appeals or to the Supreme Court of the State of Nebraska.

In view of the decision rendered by the District Court and the nature of the relief requested, the issues raised by Petitioner are moot unless Teichmeier has perfected an appeal to the Nebraska Court of Appeals or to the Supreme Court of the State of Nebraska. The evidence before the Commission does not indicate whether an appeal is pending.

Any attempt by the Commission, directly or indirectly, to force dismissal of the District Court action or any appeal which may be pending in the Court of Appeals or Supreme Court is beyond the power of the Commission. While we are complimented by Petitioner's suggestion that we have the power to require termination of proceeding in the District Court and possibly of matters pending in the Court of Appeals or Supreme Court, we decline the invitation to embrace such a thought. Such an invitation must come from a constitutional amendment or the appellate courts.

The jurisdiction of the Commission is derived 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. 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 Constitution does not include the Commission in the judicial branch of state government and specifically prohibits any exercise of power belonging to the judiciary. For the Commission to attempt, directly or indirectly, to require dismissal of an action pending in the judicial branch of state government would be in violation of the Constitution's separation of powers provisions.

Accordingly, the Commission finds that Teichmeier's right to seek relief in the District Court of Hall County, Nebraska, or to appeal any decision rendered by the District Court to the Nebraska Court of Appeals or to the Supreme Court of Nebraska cannot be limited or controlled by this Commission. Any attempt to accomplish such a result indirectly is also beyond the Constitutional powers of the Commission.

In view of the Commission's lack of jurisdiction in this matter, there is no need to reach the other issues presented by the pleadings or evidence.

IT IS, THEREFORE, ORDERED that the Petitioner's request for relief should be, and hereby is, denied and that the Petitioner's Petition should be, and hereby is, dismissed.

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

Entered January 27, 1997.