In February 2020, NAPE won a case in binding arbitration after a grievance was filed challenging the unilateral changes to employee’s dress code requiring certain employees to wear business casual clothing.
In late 2020, DHHS filed a lawsuit attempting to overturn the Arbitrator’s binding decision. In our response, NAPE’s attorney briefly set forth our argument that under Nebraska law, the Arbitrator’s decision is final and binding. Additionally, NAPE is asking the judge to declare the DHHS lawsuit frivolous and order DHHS to pay our legal fees for having to defend the action.
Lancaster County District Court Judge Kevin McManaman had asked both parties for briefs regarding case law regarding the ability of a court to overturn an arbitrator’s binding decision. Since that action, Judge McManaman recused himself from the case due to a conflict of interest with DHHS. The case has now been reassigned to Lancaster County District Court Judge Robert Otte. We expect Judge Otte to request briefs and set a hearing date in the later part of summer. The Lancaster County District Court civil docket has been significantly delayed as judges attempt to work through a backlog of criminal cases delayed by the COVID-19 pandemic.
NAPE is vigorously fighting this case because of its wide ranging impacts on our members. First, it is imperative that the state negotiate with our union on subjects of mandatory bargaining, such as the dress code. Additionally, we must stand up for our contractual right to submit disputes to binding arbitration where the result is indeed binding. We will not back down.
While the case is pending, our advice to DHHS members is to obey your supervisor if they require you to wear business casual clothing and allow the legal process to play out. While you could choose to ignore your supervisor, that is not our advice. If an employee were to be disciplined based on the dress code invalidated by the arbitrator, we would defend our members, however, we never advise our members to do something that might lead to discipline – even if we would prevail in the discipline process. We will continue to keep our members updated on the legal process.