Our appeal to the Nebraska Supreme Court regarding remote work is now fully briefed. The State of Nebraska responded to our April brief with its own brief in mid-May. Our attorneys were given the opportunity to file a reply brief, which was done in late May. The case is now fully briefed, and we are awaiting the scheduling of an oral argument before the court.
You can read the briefs here:
- NAPE/AFSCME Brief – Click Here
- State of Nebraska Brief – Click Here
- NAPE/AFSCME Reply Brief – Click Here
This is one of the most important union rights cases to head to the Nebraska Supreme Court in decades because of its wide ranging impact. While the facts of the case are about remote work, the court’s decision will clarify what is a mandatory subject of bargaining for all union members.
In the original decision handed down by the Nebraska Commission of Industrial Relations (CIR), the CIR found that our labor contract “covers” remote work because the management rights clause broadly states that management can assign “the site of the workforce.” Further, the CIR found that NAPE waived our right to negotiate over remote work changes during negotiations in 2022. Finally, the CIR ordered NAPE to pay the State of Nebraska more than $40,000 in legal fees, finding that we filed our complaint in bad faith to grow our union membership. Our appellate attorneys argue in our brief that the CIR erred in all three findings.
First, we do not believe that our contract covers remote work. Case law supports our argument that in order for a topic to be covered by a collective bargaining agreement, the contract must fully define the agreement regarding the topic. Our contract never mentions remote work. We contend that the broad management rights clause regarding “work location” is not specific to remote work, and, therefore, the contract is not fully defined and remote work is a mandatory subject of bargaining.
Second, we argue that we never waived our right to bargain over the topic. According to case law, waiver takes place when a party clearly and unequivocally expresses in the contract that they are waiving a right. The facts at trial showed that NAPE offered a remote work proposal during bargaining in 2022. The state said it was a non-starter, and refused to discuss the matter. Later, the state changed its implementation of remote work after the governor issued an Executive Order directing agencies to end remote work assignments. We never clearly waived our right to bargain, and in fact, the evidence shows it was the state who refused to negotiate.
Finally, we argue that there is no legal authority for the CIR to award legal fees to be paid to the State of Nebraska. We also argue that even if the CIR does have the legal authority to award fees, the decision to award legal fees was not supported by the evidence. The CIR found NAPE’s filing at the CIR was egregious and flagrant and was only done to increase union membership. The only evidence the state presented as trial to support this position was two posts from our website encouraging non-members to join our union and the fact that our union membership is at a record high.
Our membership has grown every year since 2019, well before the remote work trial, and we always ask non-members to stand with their colleagues and join our union. We’ve also highlighted in our brief that if the fee order stands, it is a violation of our right to petition the government, and it will chill other public employee unions from filing petitions at the CIR in fear that if the CIR doesn’t like the argument, they could be penalized for doing so.
We expect the Supreme Court to schedule oral arguments to occur in late summer. Oral arguments are open to the public and are typically heard at the Nebraska State Capitol in Lincoln. Oral arguments are also streamed live on Nebraska Public Media. After oral arguments, the Supreme Court will take the case under advisement. We expect to receive a final decision before the end of the year.
