Nebraska Ass'n of Public Employees v. Game & Parks Commission , 220 Neb. 883 ( 1985 )

Krivosha, C. J.,

concurring in the result.

I concur in the result reached by the majority in this case. I write separately, however, because I believe that the court’s failure to refer to our earlier decision of State Code Agencies Ed. Assn. v. Department of Pub. Insts., 219 Neb. 555, 364 N.W.2d 44 (1985), and either to point out how these two cases can be distinguished or to acknowledge that we were in error in our earlier decision and should now overrule that case only adds further confusion to this entire area.

In our earlier decision we concluded by noting at 559, 364 N.W.2d at 46-47: “What may be a proper recourse available to petitioners or a permissible response by the Legislature to the order of the CIR establishing wages for agency or department employees are matters not presently before the court.” Though we did not consider how the order of the CIR could be enforced in view of the fact that the Legislature had already appropriated the funds for the departments and agencies of the state in the cases before the CIR, we nevertheless concluded that the CIR had jurisdiction to set the wage rate, theoretical or advisory as that act might be.

In the present case we have concluded that the CIR did not have jurisdiction because the matter presented to the CIR in each case would not result in a settlement of an industrial dispute and therefore was advisory in nature. While there may be some distinction between the two, at this moment I have difficulty seeing what that may be. I am inclined,, however, to believe that the current decision is correct and that our decision in the earlier case of State Code Agencies Ed. Assn. v. Department of Pub. Insts., supra, was in error. In my view we should now resolve that confusion by either acknowledging the conflict or explaining the difference. No one is served by simply ignoring the issue.