Professional Firefighters Assn. v. City of Omaha

P rofessional firefighters association of omaha , local 385,
afl-cio clc, aPPellee and cross -aPPellant, v.
city of omaha , nebraska , a municiPal
corPoration, et al ., aPPellants
and cross -aPPellees.
803 N.W.2d 17
Filed September 9, 2011. 	No. S-10-710.
1. Justiciable Issues. Justiciability issues that do not involve a factual dispute pre-
sent a question of law.
2. Statutes. Statutory interpretation is a question of law.
3. Appeal and Error. An appellate court resolves questions of law independently of
the determination reached by the court below.
4. Commission of Industrial Relations: Jurisdiction. In an appropriate case,
the Commission of Industrial Relations may enter temporary orders affecting
the wages or changing the hours or terms and conditions of employment of an
employee pending the resolution of a labor dispute.
5. Moot Question. Mootness refers to events occurring after the filing of a suit
which eradicate the requisite personal interest in the resolution of the dispute that
existed at the beginning of the litigation.
6. Moot Question: Words and Phrases. A moot case is one which seeks to deter-
mine a question which does not rest upon existing facts or rights, in which the
issues presented are no longer alive.
7. Moot Question. Unless an exception applies, a court or tribunal must dismiss
a moot case when changed circumstances have precluded it from providing any
meaningful relief because the litigants no longer have a legally cognizable inter-
est in the dispute’s resolution.
8. Injunction. The purpose of an injunction is the restraint of actions which have
not yet been taken. Remedy by injunction is generally preventative, prohibitory,
or protective, and equity will not usually issue an injunction when the act com-
plained of has been committed and the injury has been done.
9. Declaratory Judgments: Moot Question. A declaratory judgment action becomes
moot when the issues initially presented in the proceedings no longer exist or the
parties lack a legally cognizable interest in the outcome of the action.
10. Declaratory Judgments: Justiciable Issues. At the time that a declaratory judg-
ment is sought, there must be an actual justiciable issue.
11. Justiciable Issues. A justiciable issue requires a present, substantial controversy
between parties having adverse legal interests susceptible to immediate resolution
and capable of present judicial enforcement.
12. Courts: Judgments. 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.
13. Moot Question: Public Officers and Employees: Appeal and Error. 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
200 	282 NebRASkA RepoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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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.
Appeal from the District Court for Douglas County: J. Patrick
mullen, Judge. Appeal dismissed.
paul D. kratz, omaha City Attorney, and bernard J. in den
bosch for appellants.
John e. Corrigan, of Dowd, Howard & Corrigan, L.L.C., for
appellee.
heavican, c.J., connolly, gerrard, stePhan, mccormack ,
and miller-lerman, JJ.
mccormack , J.
NATURe oF CASe
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), and the City of omaha, Nebraska, and
its fire chief, mayor, and individual city council members (col-
lectively City). prior to resolution of the industrial dispute, the
Commission issued a status quo order on December 23, 2009,
pursuant to Neb. Rev. Stat. § 48-816 (Reissue 2010). The sta-
tus quo order required the City to adhere to the employment
terms in place at that time, pending final determination of the
issues encompassed by the industrial dispute. on January 7,
2010, Local 385 instituted proceedings in the district court
for Douglas County and alleged that the City was in violation
of the status quo order. The district court ultimately entered
an order on June 17, finding that the City was in violation of
the status quo order by failing to retain the required minimum
number of fire personnel. The district court’s order also deter-
mined that the City was not in violation of the status quo order
by failing to maintain a specified number of fire captains, based
on the Commission’s previous determination that the issue was
one of management prerogative. The City appeals the order of
the district court, and Local 385 cross-appeals.
pRoFeSSIoNAL FIReFIgHTeRS ASSN. v. CITy oF oMAHA 	201
Cite as 282 Neb. 200

bACkgRoUND
Local 385 and the City negotiated the terms of a 2007 col-
lective bargaining agreement (CbA), the terms of which are at
issue in this case. The minimum staffing agreement was pro-
vided in article 45 of the CbA. The CbA also stated that the
City would staff a minimum of 657 sworn fire personnel pursu-
ant to the “call-back” provisions dictated in article 46. Article
46, section 1, provided:
The City shall call back from the list of employees who
have voluntarily agreed to work trade time with the City
to comply with the minimum staffing requirements of
Article 45. With the exception to calling back such trade
time volunteers, the City will be under no obligation for
the below minimum staffing requirements as long as the
total staffing levels meet or exceed . . . 657 sworn per-
sonnel, not including management or recruits in training,
after December 31, 2006 . . . .
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:
The intent of the [promotion] procedures is to create a
process whereby the minimum number of Captains in
Suppression, Captains in any of the bureaus, and Captain
paramedics always remains the same, to wit:
39 paramedic Captains assigned to Medic Units
111 Captains assigned to Suppression Companies
25 Captains assigned to the bureau
These numbers will be adjusted based upon the number
of Captains positions needed in the labor agreement in
2005, 2006, and 2007.
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 regard-
ing terms and conditions of employment for the December 31,
2007, to December 29, 2008, contract year.
202 	282 NebRASkA RepoRTS

pRoCeDURAL bACkgRoUND
Local 385 invoked the jurisdiction of the Commission pursu-
ant to Neb. Rev. Stat. § 48-818 (Reissue 2010), seeking resolu-
tion 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 and order resolving
the employment issues raised in Local 385’s petition in case
No. 1173. The order provided “Unit Staffing Requirements
— engine Companies and Truck Companies assigned and in-
service all at the rate of 4 staff members.”
both parties timely filed requests for a posttrial confer-
ence 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 peti-
tion, including staffing requirements. It stated:
The [City] requests the Commission to order that it
is the prevalent practice to have no special requirements
with regard to ambulance staffing. [Local 385] requests
the Commission to keep the current practice in place
where a Captain is staffed on ambulance. [I]t is clear
that ambulances should be staffed with 2 employees. The
remainder of the staffing requirements are management
prerogative and will not be ordered.
The February 18 final order also addressed promotional place-
ment 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 require-
ments. The final order further stated that “[a]ll other terms
and conditions of employment for the 2007-2008 contract year
pRoFeSSIoNAL FIReFIgHTeRS ASSN. v. CITy oF oMAHA 	203
Cite as 282 Neb. 200

shall be as previously established by the agreement of the par-
ties 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 par-
ties 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 condi-
tions 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 determina-
tion 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 peti-
tion 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 vio-
lated the status quo order by failing to maintain a minimum of
657 fire personnel and by failing to promote captains to reach
the level of 150 on suppression units. Local 385 requested that
the court order the City to cease and desist from failing to call
back and promote employees to fill vacancies.
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
204 	282 NebRASkA RepoRTS

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:
There is no question that the City is not replacing the
. . . CbA . . . personnel who have retired or otherwise
left City employment. Regardless of the City’s reasoned
arguments on the issue, the City’s failure to maintain 657
positions is a material breach of the City’s obligation
under the status quo order.
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 require-
ments 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 argues that the lack of requirement that a
captain be a part of a medic unit eliminates the need for
the total number of captains as agreed to in the CbA. The
[Commission’s] amendment of the captain requirement on
pRoFeSSIoNAL FIReFIgHTeRS ASSN. v. CITy oF oMAHA 	205
Cite as 282 Neb. 200

a medic unit compels the conclusion that the total number
of captains may be reduced from the obligation of 150 in
suppression companies and medic units to 111 in suppres-
sion companies.
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 over-
saw 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).
The parties’ requests to amend the January 4 findings and order
were sustained in part, and overruled in part. The Commission
issued its final order in case No. 1227 on February 17, 2011.
The final order made extensive findings regarding wages and
employment terms and conditions for the 2008-09 contract
year. However, the Commission declined to make any findings
or order any terms with regard to minimum staffing require-
ments. The final order states:
Staffing proposed bargaining topics such as “daily
staffing”, “staffing by rank”, and “overall staffing” are
management 	prerogatives 	as 	stated 	previously 	in 	the
Commission’s Findings and order, issued on January 4,
2011. The Commission does not have jurisdiction over
management prerogatives. Nebraska Dept. of Roads Emp.
Ass’n v. Dept. of Roads, 189 Neb. 754, 205 N.W.2d 110
(1973); IBEW v. City of Fairbury, 6 CIR 205 (1982).
The Commission cannot order any change because the
Commission lacks the authority to do so. “Daily staffing”,
“staffing by rank”, and “overall staffing” determinations
are management prerogatives, properly within the City of
omaha’s prerogative to make changes accordingly.
Neither the findings and order issued January 4, 2011, nor the
final order issued February 17 appear to address any staff-
ing requirements implied by the promotion and call-back pro-
cedures provided in the 2007 CbA. The final order also states
206 	282 NebRASkA RepoRTS

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 dis-
pute, the City filed a “Suggestion of Mootness” in this court,
to which Local 385 filed an objection.
ASSIgNMeNTS oF eRRoR
The City assigns that the district court erred in determin-
ing 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.
STANDARD oF RevIeW
[1-3] Justiciability issues that do not involve a factual dis-
pute present a question of law.1 Statutory interpretation is a
question of law.2 We resolve questions of law independently of
the determination reached by the court below.3
ANALySIS
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 tempo-
rary 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.
P endency of status Q uo order
[4] before we address the issue of mootness, it is necessary
to discuss the temporary nature of status quo orders issued by
1 Wetovick v. County of Nance, 279 Neb. 773, 782 N.W.2d 298 (2010).
2 Id.
3 Id.
pRoFeSSIoNAL FIReFIgHTeRS ASSN. v. CITy oF oMAHA 	207
Cite as 282 Neb. 200

the Commission. The Commission entered the status quo order
pursuant to authority granted by § 48-816(1). It states, in rele-
vant part:
The [C]ommission 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 deter-
mination of the issues.
In Transport Workers v. Transit Auth. of Omaha,4 this court
determined whether the Commission has the authority to enter
a temporary status quo order similar to the order at issue in
the present case. We noted that “reducing employees’ wages
or changing the hours or terms and conditions of employ-
ment during an industrial dispute might interfere with or
coerce employees attempting to exercise their right to bargain”
under the Industrial Relations Act (Act).5 We held that the
Commission has the authority to enter a temporary order to
avoid such interference.6
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.7 but the Commission does have the
authority to extend the terms and conditions of an expired con-
tract to effectuate good faith negotiation:
[e]ven though the [Commission] cannot compel the gov-
ernmental employer to enter into a contract, it is clear that
the [Commission] can enter a final order setting wages,
hours, and terms and conditions of employment which are
binding upon the employer, and which, in every sense,
is therefore a contract, though none may formally exist
between the parties. [W]hile the bargaining agreement
4 Transport Workers v. Transit Auth. of Omaha, 216 Neb. 455, 344 N.W.2d
459 (1984).
5 Id. at 459, 344 N.W.2d at 462.
6 See id.
7 See Neb. Rev. Stat. § 48-810.01 (Reissue 2010).
208 	282 NebRASkA RepoRTS

between the parties may have expired, the employment
contract between the parties goes on.8
Section 48-816(1) grants the Commission discretionary author-
ity, when it appears appropriate, to order that the status quo of
the parties be retained until the dispute is resolved.9 This court
has interpreted status quo orders as a means to preserve the
collective bargaining position of the employees engaged in a
pending industrial dispute.10 Such authority fulfills the public
policy of the Act to ensure the uninterrupted and continued
functioning and operation of governmental services. The lan-
guage of § 48-816 is plain, and it specifically limits tempo-
rary orders issued by the Commission to the pendency of the
dispute. Status quo orders are therefore binding on the parties
only until the dispute has been resolved.
mootness
[5-7] We must determine whether the resolution of the indus-
trial 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
which eradicate the requisite personal interest in the resolution
of the dispute that existed at the beginning of the litigation.11
A moot case is one which seeks to determine a question which
does not rest upon existing facts or rights, in which the issues
presented are no longer alive.12 Unless an exception applies, a
court or tribunal must dismiss a moot case when changed cir-
cumstances have precluded it from providing any meaningful
relief because the litigants no longer have a legally cognizable
interest in the dispute’s resolution.13
The June 17, 2010, order of the Douglas County District
Court, which found the City in violation of the status quo
8 Transport Workers v. Transit Auth. of Omaha, supra note 4, 216 Neb. at
460, 344 N.W.2d at 463.
9 Id.
10 Id.
11 Wetovick v. County of Nance, supra note 1.
12 Rath v. City of Sutton, 267 Neb. 265, 673 N.W.2d 869 (2004).
13 Wetovick v. County of Nance, supra note 1.
pRoFeSSIoNAL FIReFIgHTeRS ASSN. v. CITy oF oMAHA 	209
Cite as 282 Neb. 200

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 estab-
lished 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 appropriate-
ness 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 declara-
tory 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.
210 	282 NebRASkA RepoRTS

[8] 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.14 We have said that remedy by injunction
is generally preventative, prohibitory, or protective, and equity
will not usually issue an injunction when the act complained
of has been committed and the injury has been done.15 The
purpose of an injunction is not to afford a remedy for what is
past but to prevent future mischief.16 An injunction is not used
for the purpose of punishment or to compel persons to do right
but merely to prevent them from doing wrong.17 Accordingly,
rights already lost and wrongs already perpetrated cannot be
corrected by an injunction.18
[9-11] The inability of the court to grant the injunction
sought does not, by itself, render the declaratory action moot
as well.19 As in any other lawsuit, a declaratory judgment
action becomes moot when the issues initially presented in
the proceedings no longer exist or the parties lack a legally
cognizable interest in the outcome of the action.20 At the time
that the declaratory judgment is sought, there must be an actual
justiciable issue.21 A justiciable issue requires a present, sub-
stantial controversy between parties having adverse legal inter-
ests susceptible to immediate resolution and capable of present
judicial enforcement.22
[12] According to Local 385, a declaration that the City vio-
lated the status quo order presents a justiciable issue because
14 Koenig v. Southeast Community College, 231 Neb. 923, 438 N.W.2d 791
(1989).
15 See Rath v. City of Sutton, supra note 12.
16 Id. (citing Putnam v. Fortenberry, 256 Neb. 266, 589 N.W.2d 838
(1999)).
17 Id.
18 Id.
19 Id. (citing Koenig v. Southeast Community College, supra note 14).
20 Id. (citing Putnam v. Fortenberry, supra note 16).
21 Id.
22 Id.
pRoFeSSIoNAL FIReFIgHTeRS ASSN. v. CITy oF oMAHA 	211
Cite as 282 Neb. 200

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.23
In Koenig v. Southeast Community College,24 this court
faced a situation in which the plaintiffs brought an action to
enjoin the closure of a community college campus and the
relocation of its programs to another campus. At the time the
action was brought, the resolutions of the college board of
governors had been implemented only to a small degree. by
the time the appeal was submitted to this court, the closing
and relocation at issue had been completely accomplished. We
ultimately determined:
At this stage of the litigation, judicial enforcement of
any decree attempting to eliminate the reallocations, ren-
ovations, installations, expenditures, and transfer would
be impossible. A declaratory judgment could no more
prohibit what has taken place than could an injunction.
The case is moot as to declaratory judgment as well as
to injunction.25
Similarly, in the present case, the declaratory judgment
Local 385 seeks would suffer from the same infirmities as an
injunction. A declaration of the City’s obligations under the
status quo order would not undo what has already been done.
Since the City’s alleged violations of the temporary status quo
order, that status quo order has expired and the parties have
proceeded to bargain over new terms in subsequent contracts.
Current staffing decisions have likely been made based on
23 City of Fremont v. Kotas, 279 Neb. 720, 781 N.W.2d 456 (2010).
24 Koenig v. Southeast Community College, supra note 14.
25 Id. at 926, 438 N.W.2d at 795.
212 	282 NebRASkA RepoRTS

terms and conditions that are not before us on this appeal. The
parties’ employment relationship and bargaining positions have
continued to change and evolve with the passage of time and
changes in circumstance. Thus, the question before us does
not rest on existing facts or rights—the issues presented are no
longer alive. Local 385’s request for declaratory judgment is
also moot.
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.26 but Local 385 did not seek damages
for the City’s alleged violations. In order to be entitled to dam-
ages, Local 385 was required to specifically request such relief
in its petitions.27
of course, given the temporary nature of the status quo order
and the fact that terms were subsequently amended upon expi-
ration 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.28
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
26 See Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776
(2006).
27 See, Rath v. City of Sutton, supra note 12; Alexander v. School Dist. No.
17, 197 Neb. 251, 248 N.W.2d 335 (1976).
28 Gary’s Implement v. Bridgeport Tractor Parts, 281 Neb. 281, 799 N.W.2d
249 (2011).
pRoFeSSIoNAL FIReFIgHTeRS ASSN. v. CITy oF oMAHA 	213
Cite as 282 Neb. 200

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.
P ublic interest excePtion
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:
Whenever it is alleged that a party to an industrial
dispute has engaged in an act which is in violation of
any of the provisions of the . . . Act, or which interferes
with, restrains, or coerces employees in the exercise of
the rights provided in such act, the [C]ommission shall
have the power and authority to make such findings
and to enter such temporary or permanent orders as the
[C]ommission may find necessary to provide adequate
remedies to the injured party or parties, to effectuate the
public policy enunciated in section 48-802, and to resolve
the dispute.
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 author-
ity under § 48-819.01 has no bearing on the instant case. Local
385 did not bring an action under this provision, and it is there-
fore inapposite to our justiciability analysis.
214 	282 NebRASkA RepoRTS

[13] Local 385 next claims that the public interest excep-
tion to the mootness doctrine should apply. The public inter-
est 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.29 Were we to reach the merits of the
instant appeal, it would require an analysis of complex factors
which are unique to this case. Such factors would include the
proper interpretation of the minimum staffing, promotion, and
call-back provisions of the original CbA; an interpretation of
those terms as modified by each subsequent order issued by
the Commission; a determination of which terms were encom-
passed by the status quo order; and a finding of whether the
actions of the City amounted to a violation of those terms. It is
unlikely that we will be presented with a similar factual situa-
tion. Accordingly, there is no likelihood of recurrence of the
same or a similar problem, and we decline to apply the public
interest exception to the mootness doctrine.
CoNCLUSIoN
For the foregoing reasons, we conclude that the instant
appeal is moot. Accordingly, the appeal is dismissed.
aPPeal dismissed.
Wright, J., not participating.
29 Stoetzel & Sons v. City of Hastings, 265 Neb. 637, 658 N.W.2d 636
(2003).
HoFFeRbeR v. HASTINgS UTILITIeS 	215
Cite as 282 Neb. 215
chad a. hofferber , aPPellee and cross -aPPellant, v.
hastings utilities and emc insurance ,
aPPellants and cross -aPPellees.
803 N.W.2d 1
Filed September 9, 2011. 	No. S-10-894.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the Workers’ Compensation Court may be modified, reversed, or set aside only