13 CIR 124 (1997).

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

ANDERSON, J:

This matter comes before the Commission upon the Petitioner's Request for a Status Quo Order and Petitioner's Motion for Status Quo Hearing filed June 3, 1997. An Order setting hearing on Status Quo Motion was entered June 5, 1997, setting a telephone conference call hearing for Friday June 13, 1997 at 2 p.m., requesting that any Affidavits to be filed in support thereof by Petitioner be filed by June 9, 1997, and by Respondent by June 12, 1997.

Hearing by telephone conference call was held in accordance with the Order on June 13, 1997 at 2 p.m. Petitioner was represented by M.H. Weinberg and Respondent was represented by Renne Edmunds, Deputy County Attorney for Douglas County, Nebraska.

The sole evidence submitted before the hearing was the Affidavit of Steve Schoening submitted on behalf of the Petitioner. The Affidavit of Steve Schoening states that he is the President of the Petitioner and has been such for at least the last collective bargaining period from July 1, 1996 through June 30, 1997. Mr. Schoening has been business representative for the Petitioner responsible for administering all contracts with Petitioner during the same period of time.

According to the Affidavit, the Collective Bargaining Agreement between the Petitioner and Respondent expires on June 30, 1997 and that if a Status Quo Order is not entered, the wages, hours, working conditions, and grievance rights of the Petitioner will be subject to change unilaterally by the Respondent. Further, the Affidavit states that if a Status Quo Order is not entered the grievance machinery and the Courts could not be used to enforce and maintain the wages, hours, and working conditions so as to limit the Respondent's right to unilaterally change wages, hours, and working conditions. Lastly, the Affidavit states that the loss of working conditions is not capable of monetary calculation and the Status Quo Order is necessary pursuant to Neb. Rev. Stat. §§ 48-811 and 48-816 to preserve the rights of the parties.

No evidence was submitted by Respondent. Respondent argued that Neb. Rev. Stat. §84-811 prohibits any adverse action by threat or harassment against any employee because of the Petition being filed by such employee, or the alteration of employment status of such employee during the pendency of the Petition before the Commission. Although we might agree that a plain reading of this statute would prohibit a Respondent from altering the wages, hours, and terms of employment of its employees pending the Commission's disposition of the Petition, the Supreme Court has ruled otherwise. In Transport Workers Union of America Local 223 v. The Transport Authority of the City of Omaha d/b/a Metro Area Transit, 216 Neb. 455, 334 N.W. 2d 459 (1984) the Supreme Court stated:

The trial court, at the urging of MAT, concluded that the provisions of 48-811 did not grant to the CIR the authority to enter temporary orders concerning wages, hours, or terms and conditions of employment pending the resolution of an industrial dispute. We believe that this conclusion standing alone is correct. . . .We think it clear that the meaning of the words 'employment status' in §48-811 means precisely what it says. That is, no employer, may, without cause, change an employee's status as an employee under the provisions of §48-811, pending disposition of the petition. Id. at 457-458.

Petitioner is, therefore, not automatically protected by the statutory prohibition of 48-811 from changes in the terms and conditions of employment other than changes in employment status such as discharge or demotion. Id. at 458.

Respondent further argues that granting an Order requiring maintenance of the Status Quo upon the evidence presented "will practically be an automatic Order and not the discretionary act that should be on behalf of the Commission." Letter Brief of Renne Edmunds, Deputy County Attorney dated June 18, 1997, at page 2.

It is true that Neb. Rev. Stat. §48-816 permits the Commission 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." [Emphasis Added].

Although there has been no factual allegation that the Respondent has either changed or threatened to change the wages, hours, or other terms of employment the Affidavit of Steve Schoening asserts that the wages, hours, working conditions, and grievance rights of the Petitioner will be subject to unilateral change by the Respondent without such an Order. Although the showing of necessity is not strong, the Commission is persuaded it is sufficient to establish the necessity of preserving and protecting the status of the parties and public interest involved by maintaining the wages, hours, working conditions, and grievance rights of the Petitioner pending final determination of the issues raised by the Petitioner. Although there has been no allegation that such changes are planned, the Petitioner is entitled to maintenance of the Status Quo respecting all working conditions pending the Commission's decision. Prohibiting alteration in the terms of employment protects the public interest. As the Supreme Court stated in Transport Workers v. Transit Authority of Omaha, supra:

It may very well be that it is in the public interest to be assured that public employees, who do not have the right to strike or hinder, delay, limit, or suspend the continuity or efficiency of governmental services, should continue to receive their previous salaries or be afforded the same terms and conditions of employment while the employer, the employee, and the CIR attempt to resolve the difference. See Neb. Rev. Stat. §48-821 (Reissue 1978). Id. at 458-459.

Likewise, the Supreme Court, when discussing the Commission's authority in Transport Workers v. Transit Authority of Omaha, 415 Neb. 455, 460-461, recognized the legitimacy of continuing the contract terms pending disposition of issues, stating:

. . . [W]hile the bargaining agreement between the parties may have expired, the employment contract between the parties goes on. The employees continue to provide services and the employer is obligated to continue to make some payment. The act in question simply grants to the CIR discretionary authority, when it appears appropriate, to order that the status quo of the parties be retained until the dispute is resolved. The employee may not be entitled to insist on changes in wages, hours, or terms and conditions of employment, and the employer, on the other hand, may be required to continue making payment and providing terms and conditions of employment identical to those that existed prior to the dispute. When so ordered by the CIR in its discretion, it may very well be that it will preserve the interest of the public and will fulfill the public policy of the act to insure the uninterrupted and continued functioning and operation of governmental services. Id. at 460-461.

THE COMMISSION HEREBY FINDS that a Temporary Order pursuant to Neb. Rev. Stat. §48-816 (Supp. 1996) to preserve and protect the status of the parties, property, and public interest involved pending final determination of the issues raised by the Petition herein is necessary and should be granted.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the Respondent shall not alter the employment status, wages, or terms and conditions of employment of the employees subject to the Petition herein and shall preserve and protect the status of the parties, property, and public interest involved, pending final determination of the issues raised by the Petition herein, except as otherwise permitted by law.

Entered this 26^th day of June, 1997.