McCORMACK, J.
On December 21, 2009, the Commission of Industrial Relations (Commission) was presented with an industrial dispute between the Professional Firefighters Association of Omaha, Local 385 (Local 385),
Local 385 and the City negotiated the terms of a 2007 collective bargaining agreement (CBA), the terms of which are at issue in this case. The minimum staffing agreement was provided in article 45 of the CBA. The CBA also stated that the City would staff a minimum of 657 sworn fire personnel pursuant to the "call-back" provisions dictated in article 46. Article 46, section 1, provided:
The CBA also provided that the City was required to assign a minimum of 39 paramedic captains and to staff a total of 150 captains, pursuant to the promotion procedure dictated in article 32. Article 32, section 9, paragraph 5, stated:
Under this provision and article 45, section 1, the City agreed to staff a combined minimum of 150 captains assigned to fire suppression and medic units. The CBA expired on December 29, 2007. The parties were unable to reach an agreement regarding terms and conditions of employment for the December 31, 2007, to December 29, 2008, contract year.
Local 385 invoked the jurisdiction of the Commission pursuant to Neb.Rev.Stat. § 48-818 (Reissue 2010), seeking resolution of the industrial dispute concerning wages and conditions of employment for the 2007-08 contract year. On December 23, 2008, the Commission issued its findings
Both parties timely filed requests for a posttrial conference pursuant to § 48-816(7)(d). Pursuant to this statute, the Commission's December 23, 2008, order was not made final pending completion of the posttrial conference. Following the conference, the Commission issued a final order in case No. 1173 on February 18, 2009, which established the terms of employment for the 2007-08 contract year. The order addressed the terms of employment raised in Local 385's original petition, including staffing requirements. It stated:
The February 18 final order also addressed promotional placement and call-back pay. Regarding promotion procedures, the Commission ordered that "[p]romotional placement will be according to the current practice Omaha has in place." The final order does not address the call-back provision articulated in article 46 of the 2007 CBA. Nor does the final order indicate that the Commission interpreted the promotional or call-back provisions in the 2007 CBA to impose any staffing requirements. The final order further stated that "[a]ll other terms and conditions of employment for the 2007-2008 contract year shall be as previously established by the agreement of the parties and by orders and findings of the Commission."
Prior to expiration of the 2009 contract year, the parties were again unable to reach an agreement regarding terms and conditions of employment. On December 21, 2009, Local 385 filed an industrial dispute with the Commission in case No. 1227, seeking resolution of the 2008-09 contract terms pursuant to § 48-818. At the same time that Local 385 filed its petition, it moved for a temporary order known as a status quo order pursuant to § 48-816. Following a hearing on the matter, the Commission sustained Local 385's motion. In its status quo order, issued December 23, the Commission noted that § 48-816 authorizes the Commission to make temporary orders necessary to preserve and protect the status of the parties pending final determination of the issues. In its order, the Commission did not explicitly state the terms and conditions protected by the status quo order. It stated: "The [City] shall not alter the employment status, wages, and terms and conditions of employment of the employees subject to the Petition herein and shall preserve and protect the status of the parties, property, and public interest involved, pending final determination of the issues raised by the Petition herein."
On January 7, 2010, in the district court for Douglas County, Local 385 filed a declaratory judgment action alleging that the City was in violation of the status quo order entered by the Commission and requesting injunctive relief. Local 385's petition maintained that the City was bound by the original, expired CBA as modified by the subsequent orders of the Commission. Local 385 claimed, among other things, that the City had violated the status quo order by failing to maintain a minimum of 657 fire personnel and by
The court issued an order on February 8, 2010, which found that the City had failed to comply with the status quo order in part. The court directed the City to take immediate steps to comply with the status quo order, but determined the City had acted in good faith "under certain budgetary constraints," and no contempt finding was made at that time. However, the order stated that a finding of contempt would issue if the City failed to take the required action within 3 days of the order.
On May 7, 2010, Local 385 filed a "Further Application for Order to Show Cause and Notice of Hearing," in which Local 385 alleged that the City remained in violation of the status quo order and requested that the court hold the City in contempt. A hearing was held, and the court received evidence regarding the number of captains the City was required to staff, the required promotions to battalion chief, and the number of firefighters the City was required to staff. The court entered an order on June 17, from which the City ultimately appealed. The court found that the City was in violation of the status quo order. The court stated:
The court determined, however, that the City was not required to staff 150 captains to medic units and fire suppression. To make this determination, the district court interpreted the terms of the 2007 CBA in conjunction with the modifications and extensions imposed by the December 23, 2008, findings and order and the February 18, 2009, final order issued by the Commission in case No. 1173. Specifically, the court relied on the February 18 final order issued by the Commission, which determined that the City was required to staff ambulances with two employees, but that the remainder of the staffing requirements is management prerogative. The district court found that the Commission's order eliminated the requirement that the City staff 39 medic unit captains. Therefore, pursuant to the Commission's modifications of the term, the City was required to staff only 111 captains, not 150. The court stated:
The City timely appealed the court's finding that it violated the status quo order. Local 385 cross-appealed the finding that the City is not required to staff a minimum of 150 captains assigned to fire suppression.
During the pendency of this appeal, the Commission oversaw further proceedings to resolve the parties' industrial dispute regarding the 2008-09 contract year, filed in December 2009, case No. 1227. On January 4, 2011, the Commission entered its findings and order in the case. Both parties again filed requests for a posttrial conference pursuant to § 48-816(7)(d).
Neither the findings and order issued January 4, 2011, nor the final order issued February 17 appear to address any staffing requirements implied by the promotion and call-back procedures provided in the 2007 CBA. The final order also states that "[a]ll other terms and conditions of employment for the 2008-2009 contract year shall be as previously established by the agreement of the parties and by orders and findings of the Commission." Following the resolution of the industrial dispute, the City filed a "Suggestion of Mootness" in this court, to which Local 385 filed an objection.
The City assigns that the district court erred in determining that the City violated the status quo order entered by the Commission when the City failed to maintain a total of 657 sworn fire personnel. Local 385 cross-appeals, and assigns that the district court erred in determining that the City did not violate the status quo order when the City failed to maintain a minimum of 150 captains assigned to fire suppression.
Justiciability issues that do not involve a factual dispute present a question of law.
The City argues that upon the filing of the final order on February 17, 2011, the wages and terms and conditions of employment at issue in this case were fully established by the Commission and that the condition detailed in the temporary status quo order has been met, as there has been a final determination of the issues. As a result, upon entry of the final order, the City asserts that the status quo order was dissolved and that any issues as to its application or compliance have been rendered moot.
Before we address the issue of mootness, it is necessary to discuss the
In Transport Workers v. Transit Auth. of Omaha,
In Transport Workers, we recognized that the Act does not give the Commission any authority to compel a governmental employer to enter into a contract if the governmental employer chooses not to do so.
Section 48-816(1) grants the Commission discretionary authority, when it appears appropriate, to order that the status quo of the parties be retained until the dispute is resolved.
We must determine whether the resolution of the industrial dispute between Local 385 and the City has rendered this appeal concerning the Commission's status quo order moot. Mootness refers to events occurring after the filing of a suit
The June 17, 2010, order of the Douglas County District Court, which found the City in violation of the status quo order, is the only order that has been appealed by either party. The only issues before us concern the City's alleged violations of temporary terms imposed by the status quo order. As noted above, the Commission's February 17, 2011, order resolved the industrial dispute and dissolved the status quo order. The February 17 order displaced the temporary conditions and terms protected by the status quo order and effectively established the terms and conditions of employment for the 2008-09 contract year.
The issues determined by the February 17, 2011, final order are not before us on appeal, as it was entered while the present appeal was pending. As neither party appealed the February 17 order, this court has no authority to determine the appropriateness of the Commission's resolution of the industrial dispute or the conditions and terms of employment established by the February 17 order. Presumably, following the February 17 final order, the 2008-09 contract terms have been further amended for the 2009-10 and 2010-11 contract years by agreement or by order of the Commission. Accordingly, this appeal does not concern the conditions and terms of employment that now affect the parties.
Nevertheless, Local 385 argues that the instant case has not been rendered moot, because the alleged violations of the status quo order implicate other provisions of the 2007 CBA which remain in place. In particular, Local 385 refers to the rights of bargaining unit members to the benefits of promotion and rehire or recall as established under article 12 of the 2007 CBA. Under article 12, section 3, employees who have been laid off are eligible for reemployment for a period of 7 years. Local 385 contends that the City was required to hire additional personnel and that the failure to do so stripped the employees that would have been hired of rehire rights. Local 385 asserts that even if such employees were laid off following the February 17, 2011, order, they would still be entitled to a right of rehire.
Local 385's petition requested both injunctive and declaratory relief. Local 385 sought to enjoin the City from failing to maintain a minimum number of captains and firefighters. And they sought a declaration of the City's obligations and Local 385's rights under the status quo order.
As to the request for injunctive relief, the issue has been rendered moot by the February 17, 2011, final order. The purpose of an injunction is the restraint of actions which have not yet been taken.
The inability of the court to grant the injunction sought does not, by itself, render the declaratory action moot as well.
According to Local 385, a declaration that the City violated the status quo order presents a justiciable issue because it can then seek to recover backpay and other lost benefits for Local 385 employees who had rights to rehire and promotion that were not honored by the City during the pendency of the status quo order. In essence, Local 385 seeks an advisory opinion which it can use for further action that it may or may not take in the future, apparently to recover damages which were neither claimed nor proved below. In the absence of an actual case or controversy requiring judicial resolution, it is not the function of the courts to render a judgment that is merely advisory.
In Koenig v. Southeast Community College,
Similarly, in the present case, the declaratory judgment Local 385 seeks would
We note that in its arguments on appeal, Local 385 makes some references to possible damages. When properly pled and proved, claims for damages for harm caused by past practices are not generally moot.
Of course, given the temporary nature of the status quo order and the fact that terms were subsequently amended upon expiration of that order, even if Local 385 had requested monetary damages, establishing such relief would have likely proved tenuous. While damages need not be proved with mathematical certainty, neither can they be established by evidence which is speculative and conjectural.
In this case, a determination of which employees, if any, were entitled to monetary damages would require a number of assumptions—that all personnel in place during the pendency of the status quo order retained their employment and rank; that no employee was fired, moved, or died; and that each employee that might have been rehired or promoted was at that time able, willing, and available to take the job. Also, awarding such relief would necessitate an interpretation of subsequent terms and conditions of employment and their many possible implications for the obligations imposed by the status quo order. As previously noted, the current employment terms are not part of the record in this case. No court could prohibit what has already taken place, and the limited issues presented here are insufficient to allow any court to restore the situation as it existed at the time the status quo order was issued. This appeal is moot.
Local 385 argues that even if this court should agree that the matter is moot, it should still be reviewed, because it involves a matter affecting the public interest and because other rights and liabilities may be affected by its determination. Local 385 first contends that a decision of mootness would be detrimental to the purpose of § 48-816 and Neb.Rev.Stat. § 48-819.01 (Reissue 2010).
Section 48-819.01 states:
Local 385 asserts that if the City is allowed to engage in conduct in violation of the status quo order entered by the Commission by simply suggesting that the matter is moot after the Commission enters its order resolving the dispute, the whole process of allowing protections under the temporary order provisions of the Act has been nullified.
Local 385 is not without redress, however, and correctly notes that the Commission has the authority to enter orders necessary to provide adequate remedies for any injury proved before it under such circumstances. The Commission's authority under § 48-819.01 has no bearing on the instant case. Local 385 did not bring an action under this provision, and it is therefore inapposite to our justiciability analysis.
Local 385 next claims that the public interest exception to the mootness doctrine should apply. The public interest exception to the rule precluding consideration of issues on appeal because of mootness requires the consideration of the public or private nature of the question presented, the desirability of an authoritative adjudication for guidance of public officials, and the likelihood of recurrence of the same or a similar problem.
For the foregoing reasons, we conclude that the instant appeal is moot. Accordingly, the appeal is dismissed.
APPEAL DISMISSED.
WRIGHT, J., not participating.
