7 CIR 119 (1983). Reversed and remanded. 216 Neb. 455, 344 N.W.2d 459 (1984). Dist. Ct.


OF AMERICA, AFL-CIO, Local 223, |
Plaintiff, |
Defendant. |

Before: Judges Gradwohl, Kratz and Davis


On July 12, 1983, a hearing was held on Plaintiff's Motion For Protective Order, filed June 30, 1983, as amended orally at the hearing, and Defendant's Motion to Quash and Dismiss the Plaintiff's Motion, filed July 7, 1983. Plaintiff was represented by its attorney, Thomas F. Dowd. Defendant was represented by its attorney, Sam Jensen.

Plaintiff filed this suit on June 30, 1983, one day prior to expiration of the parties' 1982-1983 collective bargaining agreement, together with its Motion For Protective Order. It introduced evidence at the hearing (Exhibit 1) that the Defendant has posted the following notice:

June 30, 1983

To All TWU Members

Effective Midnite, June 30, 1983, the contract between TWU Local 223, and MAT expired.

There is no agreement for a Contract extension. As a result, any restrictions on management and operating rights, contained in the Contract, are no longer in effect.

For the present, wages and fringes will be continued at the existing levels.

J.T. Erdman

Executive Director

Posted 12:05 a.m.


Plaintiff introduced testimony that the Authority's bargaining representative indicated during negotiations that the Authority might institute changes in working conditions following expiration of the 1982-1983 collective bargaining agreement. Plaintiff also presented evidence that the Authority has changed certain practices as to uniforms and tools since the expiration of the prior agreement from those which were provided by and which existed under the prior agreement.

Defendant's position, as succinctly stated on pages 2-3 of its Brief, is:

"The relief requested by the Plaintiff's Motion cannot be granted because the Commission lacks the requisite authority for the following reasons: (1) the Commission has no authority to impose a contract upon the parties; (2) the Commission has no equitable power to issue a protective order of the sort requested by the Plaintiff's Motion, and (3) the issuance of such a protective order would be a disincentive to bargaining and the purpose of the Act creating and authorizing the Commission would not be served thereby.

Defendant is correct that the Commission lacks subject matter jurisdiction to impose a contract on the parties. Section 48-810.01 makes clear that "Notwithstanding any other provision of law, the State of Nebraska and any political or governmental subdivision thereof cannot be compelled to enter into any contract or agreement, written or otherwise, with any labor organization concerning grievances, labor disputes, rates of pay, hours of employment or conditions of work." And the decision of the Nebraska Supreme Court in previous litigation between the same parties presently before the Commission in this matter, Transport Workers of America v. Transit Authority of the City of Omaha, 205 Neb. 26, 286 N.W.2d 102 (1979), makes clear that the Commission has no general collective bargaining contract jurisdiction.

It is also clear that, despite the broad jurisdictional grants of authority in Sections 48-810, 48-819.01, and 48-823, the Commission has no general equitable powers.

The Commission does have very clear and explicit statutory jurisdiction as to temporary findings and orders. The second sentence of Section 48-816(1) states:

"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."

There is a very strong Nebraska public interest, as expressed in the jurisdictional mandate of Section 48-810, that "All 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."

The second sentence of Section 48-811 adds that "No adverse action by threat or harassment shall be taken against any employee because of any petition filing by such employee, and the employment status of such employee shall not be altered in any way pending disposition of the petition by the commission."

The Commission does not agree with Defendant's assertion that the issuance of a protective order "would be a disincentive to bargaining." A protective order is intended as a disintentive to unilateral actions by one of the parties to an industrial dispute during the pendency of the matter before the Commission of Industrial Relations.

The Commission has today entered a separate Order on Preliminary Proceedings under the direction of the first sentence of Section 48-816(1) that after a petition has been filed, the Commission "shall promptly take such preliminary proceedings as may be necessary to insure a prompt hearing and speedy adjudication of the industrial dispute." That Order specifies an exchange of information between the parties for the purposes of further pleadings and for the trial of this matter under Section 48-818, orders a pretrial conference to be held next month, orders a trial on the merits in less than two months from the date of the Order, and (also pursuant to the express authority of Section 48-816(1)) orders the parties to continue to bargain in good faith during the pendency of this action. The Commission will make every effort to settle the matter expeditiously as well as properly under the controlling statutes and the parties are strongly encouraged to make every effort to settle the matter by further negotiations and agreement.

It is, therefore, Ordered pursuant to the authority of Sections 48-816(1) and 48-811 that the employment status of employees shall not be altered in any way pending disposition of the Petition herein by the Commission.

Filed July 13, 1983