9 CIR 310 (1988). Reversed and Remanded with Directions to Dismiss, 231 Neb. 23, 434 N.W.2d 684 (1989).


Petitioner, |
v. | ORDER
Respondent. |


For the Petitioner: Mark D. McGuire

Crosby, Guenzel, Davis,

Kessner & Kuester

400 Lincoln Benefit Building

Lincoln,Nebraska 68508

For the Respondents: Jill Gradwohl Schroeder

Assistant Attorney General

2115 State Capitol

Lincoln, Nebraska 68509

Charles E. Lowe

Assistant Attorney General

2115 State Capitol

Lincoln, Nebraska 68509

Before: Judges Mullin, Cope, and Peetz


This matter came on for hearing on January 12, 1988 upon Petitioner's Motion to have this Commission appoint a mediator pursuant to Neb. Rev. Stat. 81-1381 (Supp. 1987), or in the alternative to waive mediation and order the parties to submit their industrial dispute to a previously appointed Special Master. The Association was represented by its attorney, Mark D. McGuire and the State was represented by its attorneys, Jill gradwohl Schroeder and Charles E. Lowe.

These parties were recently before the Commission in Case No. 697, State Code Agencies Ed. Ass'n v. State of Nebraska . In that case, the Petitioner asked this Commission to order the State to commence negotiations. In an Order entered December 4, 1987, we found that statutorily the parties were required to negotiate and we ordered the State to commence negotiations with the Association immediately. On December 7, 1987, a Notice of Appeal to the Supreme Court of the Order requiring the State to commence negotiations, was filed in Case No. 697.

In this case, the Petition Requesting a List of Special Masters was filed on December 4, 1987. A Joint Request for Order Appointing Special Master was filed by the parties on December 14, 1987, selecting Nancy D. Powers as the parties choice o Special Master. An Order Naming Special Master was issued by this Commission on December 15, 1987.

At the hearing on the present Motion, the Petitioner introduced exhibits numbered 1-3 and 5-12. The Respondent objected generally, to all exhibits, on the grounds that we have no jurisdiction to decide the Motion, and specifically, to exhibits 8, 9 and 10 on relevancy grounds. The Commission reserved ruling on Respondent's objections and at this time overrules all objections thereby receiving all of Petitioner's exhibits, for purposes of this hearing. The State introduced Exhibit 13 which was received without objection.


The State contends that we have no subject matter jurisdiction in this case because we lost such jurisdiction upon the filing of their appeal of our order in Case No. 697. The State argues that there is but one industrial dispute at issue here and jurisdiction is currently with the Supreme Court because of the State's appeal.

The Association argues that the current Motion does not concern the same issue that arose in Case No. 697 wherein we issued a bargaining order. Instead, in the present case the Association is seeking to have the Commission order implementation of the impasse resolution procedures set out in the State Employees Collective Bargaining Act, Neb. Rev. Stat ยง81-1369, et. seq. (Supp. 1987). The Association contends that a bargaining order case is an entirely separate and distinct proceeding that does not and can not effect implementation of impasse procedures.

The order we entered in Case No. 697 was issued pursuant to the statutory authority given this Commission to issue bargaining orders, contained in Neb. Rev. Stat. 48-816 (Supp. 1987). A clear reading of the statute shows that a bargaining order may be issued before, during, or even after presentation of the pending industrial dispute to the Commission. In relevant part, Section 48-816 reads:

48-816. Preliminary proceedings; commission; powers; duties; collective bargaining. (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 insure a 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 employee or labor organization have failed or refused to bargain in good faith concerning the matters indispute, 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.

It is apparent that any order issued pursuant to this Statute is a preliminary order pending disposition of the industrial dispute. Preliminary orders are not final orders and are not appealable.

The Respondent further argues that the Commission does not have subject matter jurisdiction over the present motion because the Petitioner is seeking to have an order entered concerning impasse and since bargaining has never commenced the parties cannot be at impasse. The Petitioner clearly does not seek any order concerning bargaining and in fact no longer contemplates bargaining with the State but seeks resolution of the underlying industrial dispute by whatever means available.

We have held that impasse is possible without negotiation. In IBEW v. MUD , 6 CIR 246, (1982), this Commission found that;

It is not necessary that the parties engage in collective bargaining prior to initiation of the proceeding in the Commission seeking the establishment of wages and conditions of employment under Section 48-818; although Section 48-816(1) authorizes the Commission to order bargaining to be begun or resumed during the pendency of the case.

We thus conclude that we do have jurisdiction over the pending motion.


Prior to enactment of the State Employees Collective Bargaining act, public employers and employees could invoke the jurisdiction of the Commission at impasse and the Commission would fashion a remedy which usually included setting the actual wages, terms and conditions for the employees. However, upon the passage of the State Employees Collective Bargaining Act, State employees were given very specific statutory rights and duties under an entirely new scheme of impasse resolution. The scheme requires mediation and factfinding by a Special Master, before one party can ask this Commission, or appeal to this Commission, to have us set wages, terms and conditions of employment. While the statute may facially accommodate, all aspects of impasse resolution, it clearly contemplates cooperation between the parties to the dispute and on strict reading appears to provide only one remedy in the event one party to the dispute does not cooperate in the impasse process.

Neb. Rev. Stats. 81-1386 and 81-1387 (Supp. 1987), provide that a refusal to participate in good faith in any impasse procedures for State employees set forth in Sections 81-1380 to 81-1385, shall be a prohibited practice. An allegation or complaint of a prohibited practice may be filed with the Commission and a hearing held whereby the Commission shall order an appropriate remedy.

The present Motion was not filed as a prohibited practice complaint and at the hearing the Association admitted that although it could have filed with the Commission under 81-1386 and 81-1387, it chose not to. The Association explained that under the prohibited practice statutes the Commission's order is appealable to the Supreme Court. Thus, had the Association sought relief under the prohibited practice statutes the State could appeal the Commission's decision thereby effectively stalling the impasse process to a point where the Association could no longer comply with the statutory deadlines in the legislation and the time frame for presenting any proposal to the legislature for appropriation of funds would be past. By filing the motion currently before the Commission, the Association is attempting to devise a procedure whereby this Commission can enforce the impasse resolution procedures set out in the State Employees Collective Bargaining Act within such reasonable time frame so as to actually afford the Association an effective remedy.

It is clear from the language of the impasse resolution procedures that it is the legislative intent that mediation and submission of the final dispute to a Special Master be mandatory. Both Statutes state that such procedures "shall" occur. To allow an employer to simply refuse to participate in a mandatory process and give no effective remedy to the employees to counter such uncooperation is to render meaningless the entire statutory scheme.

Such an outcome also flies in the face of the purpose of the Act. Section 81-1370 states that "it is the public policy of this state and the purpose of the State Employees Collective Bargaining act to promote harmonious, peaceful and cooperative relationships between state government and its employees and to protect the public by assuring effective and orderly operations of government."

The legislation must contemplate that the parties can be required or ordered to submit to both mediation and fact finding under a Special Master.

It is Therefore Ordered That: Mandatory mediation under Section 81-1381 be commenced immediately and the parties are ordered to submit all unresolved issues that resulted in impasse to the Special Master previously agreed to by the parties.

Entered January 14, 1988