16 CIR 218 (2008)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

NEBRASKA ASSOCIATION OF PUBLIC EMPLOYEES ) CASE NO. 1188
LOCAL 61 of the AMERICAN FEDERATION OF STATE, )
COUNTY AND MUNICIPAL EMPLOYEES,   ORDER ON STATUS QUO
)  
                                  Petitioner, )  
         v. )  
)  
THE STATE OF NEBRASKA, NEBRASKA )
DEPARTMENT OF HEALTH AND HUMAN SERVICES, )  
  )  
                                  Respondents. )

 APPEARANCES:

For Petitioner: Dalton W. Tietjen
TIETJEN, SIMON & BOYLE
1023 Lincoln Mall, Suite 202
  Lincoln, NE  68508
For Respondents: Jim Hatheway
  David McManaman
Legal Counsels, NDHHS
  301 Centennial Mall South
  P. O. Box 95026
Lincoln, NE  68509-5026

Filed July 16, 2008.

MCGINN, C:

This matter comes before the Commission upon the Petitioner’s request for a status quo order contained in its Petition filed July 1, 2008.  A hearing was held before the Honorable Bernard J. McGinn on Thursday, July 10, 2008 by telephonic conference.  The Petitioner was represented by its attorney Dalton W. Tietjen and Respondent was represented by its attorneys Jim Hatheway and David McManaman.

While the Commission’s jurisdiction is limited regarding temporary orders, the Commission does have authority to enter temporary orders. See Transport Workers Union of America, Local 223 v. Transit Auth. of the City of Omaha, 216 Neb. 455, 344 N.W.2d 459 (1984). In Transport Workers the Nebraska Supreme Court stated that Neb. Rev. Stat. §48-816 provides in part:

The commission shall have the 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.

 

Thus, the Supreme Court determined that the Commission clearly has authority under Neb. Rev. Stat. §48-816 and §48-819.01 and Transport Workers to issue status quo orders.  Transport Workers, however, left open the question of when such orders should be issued. The Supreme Court stated:

[T]he authority of the CIR to enter temporary orders is not unlimited. . .We will not now attempt to enumerate all the possible circumstances under which the CIR may exercise its authority.  We do note, however, that the authority granted to the CIR under the present act in general and section 48-816, R.R.S. 1943, in particular, is limited in nature.  We would anticipate that the CIR will exercise that jurisdiction in as narrow a manner as may be necessary.

 

Id. at 460, 344 N.W.2d at 463 (quoting University Police Officers Union v. University of Neb., 203 Neb. 4, 277 N.W.2d 529 (1979)). Transport Workers concluded that the Industrial Relations Act simply grants authority when it appears appropriate to order that the status quo of the parties be retained until the dispute is resolved. Id. at 461, 344 N.W.2d at 463.

The Respondent in its brief argues that the Commission does not have jurisdiction to resolve the pending dispute. The Petition requests relief under Neb. Rev. Stat. § 81-1387. Based upon the filings in front of the Commission, we are satisfied we have the requisite jurisdiction to issue a temporary order if appropriate.

However, the Commission having reviewed the documents presented is not convinced that the Petitioner is entitled to the requested temporary order. Without a full hearing to adjudicate the matter, the Commission finds that the Petitioner has not made a sufficient showing to support the issuing of the requested Status Quo.

It is hereby ORDERED that the request for a status quo order is overruled.