9 CIR 19 (1986), Appeal Dismissed April 29, 1987


Petitioner, |
Respondent. |


For the Petitioner: J. Murry Shaeffer

Shaeffer & Watermeier, P.C.

633 South Ninth Street, suite 302

Lincoln, Nebraska 68508-2877

For the Respondents: William A. Harding

1200 "N" Street, 500 The Atrium

P.O. Box 82028

Lincoln, Nebraska 68501-2028

Charles E. Lowe

Assistant Attorney General

2115 State Capitol

Lincoln, Nebraska 68509-4906

Before: Judges Cullan, Mullin, Kratz, Orr, and Cope (EN BANC)


Nature of the Proceedings:

This is a proceeding under Section 48-818 to determine wages and conditions of employment for all commissioned officers of the Nebraska State Patrol who have recently been reclassified and merged into the classifications of Trooper, Sergeant, Investigative Officer, and Investigative Sergeant.

Most of the significant pretrial proceedings are described in the Memorandum entered July 24, 1986, in connection with the Order entered on July 1, 1986, granting and denying various pretrial motions.

After entry of the above Order and Memorandum and various amendments of the pleadings, the following issues concerning the 1986/1987 contract year remain for the Commission to resolve:

a. Rates of pay and the scale of wages;

b. Progressive steps within pay ranges;

c. Hours of work in a work period;

d. Length of work period.

The State takes the position that the Commission is without jurisdiction to decide this case due to the enactment of L.B. 1250, approved by the governor on April 10, 1986.


The Commission of Industrial Relations was created by the Legislature under the general grant of legislative power under Article III, Section 1. Orleans Education Assn. v. School District of Orleans , 193 Neb. 675, 229 N.W.2d 172 (1975). The jurisdiction of the Commission flows from Article XV, Section 9, of the Constitution of the State of Nebraska and from the provisions of Sections 48-801 to 48-838 R.R.S. 1943. See, University Police Officers Union v. University of Nebraska , 203 Neb. 4, 277, N.W.2d 529 (1979). The authority of the Commission is carefully circumscribed. University Police Officers Union v. University of Nebraska, Supra, Transport Workers of America v. Transit Auth. of City of Omaha , 205 Neb. 26 286 N.W.2d 102 (1979).

The Commission is an administrative body performing a quasijudicial function and is not subject to the Administrative Procedure act. An administrative body has no authority other than that specifically conferred by statute or by a construction necessary to accomplish the plain purpose of the act. Transport Workers of America, Supra; NAPE v. Game & Parks Comm. , 220 Neb. 883, 374 N.W.2d 46 (1985).

The Commission has jurisdiction to resolve disputes between agencies or departments of the State of Nebraska and their employees. State Code Agencies v. Dept. of Pub. Inst. , 219 Neb. 555, 346 N.W.2d 44 (1985). However, the Commission is statutorily created and has only that jurisdiction and authority provided in the statutes. To the extent the Legislature has made binding determinations, the Commission and the parties are precluded from acting in a different manner. State Code Agencies v. Dept. of Pub. Inst. , 7 CIR 186 (1984).

In LB 1250 enacted by the 89th Legislature, Second Session, which became effective July 17, 1986, the Legislature clearly determined the manner in which increases in salaries and the levels of compensation for state employers shall be determined for the 1986/1987 fiscal year. LB 1250 provides in pertinent part:

Section 1. A recent Supreme Court decision established that the Commission of Industrial Relations has jurisdiction to determine wages and other terms and conditions of employment for state employees. In order to implement and provide for meaningful collective bargaining by state employees and for funding of any orders by the Commission of Industrial Relations regarding state employees, changes in state policy and law may be desirable. It is the intent of the Legislature that such changes, if any, will be evaluated and implemented by July 1, 1987, and until such changes can be so evaluated and implemented, increases in salaries and the levels of compensation for state employees shall be determined on a statewide basis as provided in this act.

Sec. 2. (1)(a)For fiscal year 1986-87, salary increases for state employees shall be made pursuant to this act. The salary levels established for such year as a result of the implementation of this act shall not be subject to the findings and orders of the Commission of Industrial Relations.

(b)No appropriation, except any which specifically so provides in Legislative Bill 1250A, Eighty-ninth Legislature, Second Session, 1986, shall be used for purposes of payment of any salary, salary rate, or salary base increase for any state employee for fiscal year 1986-87 resulting from any order of the Commission of Industrial Relations.


(3) This section shall apply to and include all cases filed with the Commission of Industrial Relations for fiscal year 1986-87 covering state employees.

Sec. 3. The jurisdiction of the Commission of Industrial Relations to establish salary or base salary levels or other terms of compensation for state employees shall not be invoked before the end of the 1987 regular session of the Legislature and if so invoked shall only be effective beginning with fiscal year 1987-88 and each fiscal year thereafter. The Legislature may, during the 1987 regular session, prohibit by law any order of the Commission of Industrial Relations relating to state employees for fiscal year 1987-88 if it finds such order will be inconsistent with any legislation passed during the 1987 regular session dealing with collective bargaining by state employees.

Sec. 4. That section 48-837, Reissue revised Statutes of Nebraska, 1943, as amended by section 7, Legislative Bill 258, Eighty-ninth Legislature, Second Session, 1986, be amended to read as follows:

48-837. Public Employees shall have the right to form, join, and participate in or to refrain from forming, joining, or participating in any employee organization of their own choosing. Public employees shall have the right to be represented by employee organizations to negotiate collectively with their public employers in the determination of their terms and conditions of employment and the administration of grievances arising thereunder. Any such agreements with the State of Nebraska or any agency thereof shall cover a biennial period coinciding with the biennial budgeting period of the state and shall be subject to approval by the Legislature. Any agreement with the State of Nebraska or any agency thereof for fiscal year 1986-87 on nonsalary or nonclassification issues need not be approved by the Legislature and may be for a period shorter than the budgeting period, except that if there is no agreement by June 30, 1986, the existing agreement or contract shall be continued until such time as an agreement or contract for the remainder of the 1986-87 fiscal year has been reached. Any agreements or contracts for the 1987-89 biennium shall be on an annual fiscal-year basis.

In Section 5 of LB 1250, the Legislature set forth the salary increases to be granted on July 1, 1986 for the 1986-1987 fiscal year. Concerning all permanent employees with a minimum of six months' continuous service with the state and all intermittent employees, the Legislature provided in Section 5(8) as follows:

(8) In addition to the salary increases granted under subsection (2) of this section, salary increases may be granted only for promotions, merit, salary grade adjustments, salary adjustments, and reclassifications and shall be allowed only if such salary increases do not increase expenditures for permanent and temporary salaries and per diems above the limitations enumerated by law. Any request for adjustments to the 1986-87 continuation base for temporary and permanent salaries and per diems shall be submitted on or before January 1, 1987, to the Legislative Fiscal Analyst who shall present such requests to the appropriations Committee. Such requests shall include copies of the written documentation provided by the Department of Personnel for approval of classification changes and salary grade adjustments.

In view of the provisions of LB 1250, it is clear that the Commission is precluded from establishing rates of pay or a scale of wages or any contract provisions which affect compensation. It is also clear from a review of the evidence at trial that each of the above listed issues does affect compensation; therefore, the Commission is without jurisdiction.


Because LB 1250 has temporarily removed all jurisdiction from the Commission as it relates to establishing salary and terms of compensation for state employees, we cannot address the merits of the specific issues of the case at bar pertaining to compensation.

All Judges of the Commission join in the entry of this Findings and Order.

Entered September 18, 1986