S-25-0026 Nebraska Association of Public Employees Local 61 (Appellant) v. State of Nebraska (Appellee)
Appeal from the Commission of Industrial Relations, Hon. Gregory M. Neuhaus, Dallas D. Jones, and William G. Blake
Attorneys: Abby Osborn (Shiffermiller Law Office, P.C., L.L.O.) and Richard Griffin and Kara Naseef (pro hac vice, Bredhoff & Kaiser, P.L.L.C.) for Appellants) and Zachary A. Viglianco (Principal Deputy Nebraska Solicitor General)
Civil: Appeal from the Nebraska Commission of Industrial Relations regarding collective bargaining
Proceedings below: Gov. Pillen signed an executive order that eliminated the option of remote work for many Nebraska public employees. After the State refused to participate with collective bargaining, the Nebraska Association of Public Employees (NAPE) filed suit, and the Commission of Industrial Relations determined that the State was not required to do so. NAPE filed a direct appeal to the Nebraska Supreme Court pursuant to Neb. Rev. Stat. § 81-1387.
Issues: Appellant makes the following assignments of error: 1) The CIR erred in its determination that the State was not obligated to bargain over implementation of across-the-board elimination of remote work; 2) The CIR erred by finding that the decision to unilaterally end remote work was covered by the CBA; 3) The CIR erred by not addressing economic effects on bargaining unit employees of changes to remote work, which are mandatory subjects of bargaining; 4) The CIR erred in its determination that NAPE waived its right to bargain over implementation of the elimination of remote work; 5) The CIR erred because the preponderance of the evidence on the record does not support the CIR’s finding that the parties’ past practice concerning the State’s revocation of individual telework agreements for particular performance-based reasons privileged the State to eliminate remote work without bargaining over implementation of that decision; 6) The CIR erred because the preponderance of the evidence does not support the CIR’s finding that “[t]he parties previously bargained in good faith over the issues of remote work and working hours during negotiations for the current CBA;” 7) The CIR erred because the preponderance of the evidence does not support the CIR’s finding that NAPE withdrew its remote work proposal in return for wage increases; 8) The CIR exceeded its authority by assessing an unprecedented attorneys’ fees award against NAPE for simply fulfilling its statutory duty to represent bargaining-unit employees and keeping those employees advised of NAPE’s representational activity; 9) The CIR erred because the preponderance of the evidence does not support the CIR’s finding that NAPE’s intent in filing the petition was to “improperly delay[] the implementation” of the Executive Order and “boost[] membership numbers;” 10) The CIR erred because the preponderance of the evidence does not support the CIR’s finding that NAPE engaged in “willful, flagrant, aggravated, persistent, and pervasive prohibited misconduct” and pursued the action in bad faith; 11) The CIR erred in awarding attorneys’ fees and costs because the CIR does not have a uniform practice of awarding attorneys’ fees; 12) .The CIR erred when it relied on a regulation that does not provide for attorneys’ fees under the circumstances present here; 13) The CIR erred by penalizing petitioning conduct protected by the First Amendment to the U.S. Constitution and Article I, Section 19 of the Nebraska Constitution.