8 CIR 28 (1985), Appeal Dismissed May 17, 1985.


SCHAFER, on their own |
behalf and on behalf of other |
home teachers similarly |
situated, |
Petitioner, |
Respondent. |

Before: Judges Ashford, Gradwohl, and Kratz


This matter came on for an evidentiary hearing this 24th day of January, 1985, pursuant to the Report of Pretrial Conference entered by the Commission herein on December 5, 1984. The petitioners were represented by their attorney, M.H. Weinberg. The respondent was represented by its attorney, Bruce G. Mason. The sole purpose of the hearing was to determine whether the Commission of Industrial Relations has jurisdiction to make a Section 48-818 determination in this case.

This case was filed as a class action by three employees of the respondent, Eastern Nebraska Community Office of Retardation. All three of the named petitioners, as well as each of the employees of the class they claim to represent, have existing individual employment contracts with the respondent.

The evidence establishes that there is no collective bargaining representative for these employees. The fact that a public employer enters into individual contracts with its employees does not preclude the Commission from establishing rates of pay and conditions of employment under Section 48-818, R.R.S. 1943, where the employer has failed to reach agreement with the collective bargaining representative of its employees. See District 15 Education Association v. School District Number 15 , 5 CIR 242 (1981). The individual contracts in this instance, in the absence of a collective bargaining representative for these employees, are binding as to wages and conditions of employment for the current contract year.

It is clear from the Nebraska Supreme Court's decision in Transport Workers of America v. Transit Authority of the City of Omaha , 205 Neb. 26, 286 N.W.2d. 102 (1979), that the Commission is without authority to affect the terms and conditions of existing agreements of an employer and its employees. In the Transport Workers case, the Nebraska Supreme Court stated:

That the authority of the CIR is limited to disputes between a public employer and a public employee absent an agreement is made even clearer when we examine the provisions of sections 48-818 and 48-819, R.R.S. 1943. Section 48-818 specifically limits the findings and orders of the CIR to establishing or altering 'the scale of wages, hours of labor, or conditions of employment, or any one or more of the same.' Specifically, section 48-818 provides: 'In making such findings and order or orders the Court of Industrial Relations shall establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid and conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions.' The mandate language of section 48-818 does not lend itself to any suggestion that the CIR could alter or modify the terms of an existing agreement during the life of the agreement, any more than either party could unilaterally do so.

Id . at 32, 286 N.W.2d 102, 106 (1979).

As a result, the Commission finds that it is without jurisdiction in this case and that it should be dismissed.

IT IS, THEREFORE, ORDERED that the petitioners' Petition is dismissed.

Entered February 5, 1985.