13 CIR 329 (2000)

Appearances:

For the Petitioner: Mark D. McGuire

McGuire & Norby

605 South 14^th Street

Suite 100

Lincoln, NE 68508

For the Respondent: William A. Harding

Harding, Shultz & Downs

800 Lincoln Square, 121 S. 13^th Street

P. O. Box 82028

Lincoln, NE 68501-2028

Before: Judges Anderson, Cullan and DeLay.

NATURE OF THE PROCEEDINGS:

This matter comes before the Commission upon Petitioner's request for good faith bargaining and mediation and Respondent's Motion to Dismiss. The case raises the issue of whether the Commission's jurisdiction has been invoked.

Petitioner alleges that an industrial dispute exists since negotiations have broken down and Respondent has unilaterally implemented terms and conditions of employment. The Petition seeks an order requiring the parties to resume good faith bargaining concerning matters in dispute and that the Commission order mediation. Petition, p. 2. No other relief is sought.

The Commission held a hearing on the Motion to Dismiss on January 14, 2000, in which the parties were represented by their attorneys. At the outset of the hearing, the parties stipulated that the Petition includes no allegation of a violation of the second sentence of Neb. Rev. Stat. § 48-811 (Reissue 1998). The parties further stipulated to Respondent's amendment by interlineation of its it Answer and its Motion to Dismiss.

Respondent amended its Motion to Dismiss by changing the clause "the Petition does not allege sufficient facts to invoke the jurisdiction of the Commission under Neb. Rev. Stat. § 48-811 (Reissue 1998), or under Neb. Rev. Stat. § 48-616(1). . ." to "the Petition does not allege sufficient facts to invoke the jurisdiction of the Commission under Neb. Rev. Stat. § 48-801(7) (Reissue 1998), or under Neb. Rev. Stat. § 48-816(1). . ." Additionally, Respondent amended paragraph V of its Answer by adding, "except as to the first sent. of para. V." This amendment reflected that Respondent does not agree with Petitioner's legal conclusion that the facts presented create an industrial dispute.

After the stipulations were entered and Respondent's amendments were completed, the Commission heard arguments from the parties on the Motion to Dismiss. Respondent contends that the Commission lacks jurisdiction in this case because no industrial dispute exists under

§ 48-801(7) and because § 48-811 does not independently confer jurisdiction upon the Commission. That is, § 48-811 must be coupled with an alleged violation of another section, such as §§ 48-811 (second sentence), 816 (bad faith bargaining), 818 (wage issues), 824 (prohibited practices), and/or 838 (representation issues), before the Commission has jurisdiction.

Petitioner disagrees. Petitioner claims that §§ 48-801(7), 810, and 811 read together, confer jurisdiction upon the Commission whenever there is an industrial dispute, and that an industrial dispute exists in this case. We agree with Petitioner's claim that an industrial dispute exists. We do not agree, however, that the Commission's jurisdiction has been properly invoked in this case; therefore, the Commission cannot order the parties to return to bargaining or order mediation of their dispute.

LEGAL ANALYSIS:

I. Industrial Dispute

The initial jurisdictional hurdle in any case before the Commission is the existence of an industrial dispute. §§ 48-810 and 811. Section 48-801(7) defines an industrial dispute as "any controversy concerning terms, tenure, or conditions of employment, or concerning the association or representation of persons negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, or refusal to discuss terms or conditions of employment." (emphasis added).

For purposes of ruling on the Motion to Dismiss, the allegations of the Petition will be accepted as true. By admission in paragraph V of its Answer, Respondent acknowledges that "[n]egotiations between the FOP and the City have broken down and the City has unilaterally imposed its last offer pertaining to terms and conditions of employment all with respect to the 1999-2000 contract year." Petition, ¶ 5. There is no dispute that Respondent's final offer was lawfully implemented. The lawful implementation of a final offer, however, does not terminate an existing industrial dispute. The parties still disagree over terms and conditions of employment. Therefore, the parties' continuing controversy concerning terms, tenure, or conditions of employment means that an industrial dispute still exists.

II. Invoking the Commission's Jurisdiction

The existence of an industrial dispute, alone, does not invoke the Commission's jurisdiction. Some form of relief from the Commission must be sought. Section 48-810 provides: "Except as provided in the State Employees Collective Bargaining Act, industrial disputes involving governmental service, service of a public utility, or other disputes as the Legislature may provide shall be settled by invoking the jurisdiction of the Commission of Industrial Relations." (emphasis added). Section 48-811 likewise provides in part, "[A]ny employer, employee, or labor organization . . . when any industrial dispute exists between the parties as set forth in section 48-810, may file a petition with the Commission of Industrial Relations invoking its jurisdiction." (emphasis added).

These statutes allow parties to invoke the Commission's jurisdiction whenever an industrial dispute exists. A simple allegation that an industrial dispute exists does not invoke the Commission's jurisdiction. To invoke the Commission's jurisdiction a party must cite a specific section in the Act that invokes the Commission's jurisdiction to resolve the industrial dispute in some way. These sections include, but are not limited to, the following: § 48-811 (second sentence - adverse action and/or alteration of employment status); § 48-816(1) (failure to bargain in good faith); § 48-818 (wage disputes); § 48-824 (prohibited practices); and § 48-838 (representation issues).

Petitioner in this case alleges the existence of an industrial dispute and seeks a bargaining order and an order to mediate under § 48-816(1), but does not allege the necessary predicate such as bad faith bargaining, or request the Commission to resolve the industrial dispute. Respondent objects on the basis that the sought remedy of good faith bargaining and a mandatory mediation order are remedies dependent upon some other findings. As stated in § 48-816(1):

After a petition has been filed under section 48-811, the clerk shall immediately notify the commission which shall promptly take such preliminary proceedings as may be necessary to ensure prompt hearing and speedy adjudication of the industrial dispute. 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. In the event of an industrial dispute between an employer and an employee or a labor organization when such employer and employee or labor organization have failed or refused to bargain in good faith concerning the matters in dispute, the commission may order such bargaining to begin or resume, as the case may be, and may make any such order or orders as may be appropriate to govern the situation pending such bargaining. The commission shall require good faith bargaining concerning the terms and conditions of employment of its employees by any employer. Upon the request of either party, the commission shall require the parties to an industrial dispute to submit to mediation or factfinding. Upon the request of both parties, a special master may be appointed if the parties are within the provisions of section 48-811.02. The commission shall appoint mediators, factfinders, or special masters for such purpose. Such orders for bargaining, mediation, factfinding, or a special master proceeding may be issued at any time during the pendency of an action to resolve an industrial dispute. To bargain in good faith shall mean the performance of the mutual obligation of the employer and the labor organization to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment or any question arising thereunder and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.

(emphasis added).

Section 48-816(1) allows the Commission to order good faith bargaining when bad faith bargaining is alleged. There is no such allegation in this case; therefore, the Commission cannot issue such an order. To achieve a quick resolution of the issues, the Commission will not order the parties to engage in further fruitless discussions after the parties have bargained to impasse. See, Geneva Educ. Ass'n v. Fillmore County School Dist. 0075, a/k/a School Dist. of Geneva, 10 CIR 238 (1989); School Dist. of the City of Lincoln v. Lincoln Educ. Ass'n, 6 CIR 352 (1982).

Section 48-816(1) also provides for the Commission to order the parties to mediation upon the request of either party "[a]fter a petition has been filed under section 48-811," and "during the pendency of an action to resolve an industrial dispute." § 48-816(1). Since no petition has been filed invoking specific jurisdiction under § 48-811, the Commission does not have jurisdiction.

Furthermore, having found no proper request for bargaining, the only remaining relief sought is an order to mediate. An order to mediate, however, is dependent upon another form of proper relief being sought - it must be sought during the pendency of a case to resolve an industrial dispute. The petition seeks no proper relief in conjunction with the request for the order to mediate. Thus, although an industrial dispute exists, the petition does not seek the Commission's resolution of the dispute, and the Commission lacks jurisdiction to send the parties to mediation.

Requiring adherence to the legislature's statutory jurisdictional framework before the Commission orders the parties to mediation promotes the speedy resolution of industrial disputes. Without an appropriate invocation of the Commission's jurisdiction, if the parties are unable to resolve their dispute during mediation, the Commission is left with no relief requested in the petition. Whereas, if Petitioner seeks relief under § 48-818, for example, in addition to requesting mediation under § 48-816(1), and mediation is unsuccessful, the case smoothly proceeds on the request for relief under § 48-818.

The legislature granted specific authority to the Commission for the resolution of industrial disputes. The Commission is not a court of equity and cannot exercise power it does not possess. See, Jolly v. State, 252 Neb. 289, 562 N.W.2d 61 (1997); Transport Workers v. Transit Authority of Omaha, 216 Neb. 455, 344 N.W.2d 459 (1984); University Police Officers Union v. University of Neb., 203 Neb. 4, 277 N.W.2d 529 (1979).

THE COMMISSION HEREBY FINDS that the Petition does not seek proper relief and does not invoke the Commission's jurisdiction. The Motion to Dismiss should be granted.

IT IS THEREFORE ORDERED that the Motion to Dismiss is granted. Pursuant to Petitioner's oral request at the hearing, the Petitioner is granted fourteen (14) days to file an amended petition properly invoking the Commission's jurisdiction.

Entered January 21, 2000.