Nebraska Supreme Court sides with Pillen order on remote work, state bargaining

LINCOLN — The Nebraska Supreme Court sided with state officials Friday in saying they had the right to refuse to bargain with a state employees union over a 2023 executive order seeking to limit remote work.

Justice Jonathan Papik of Omaha, in a unanimous 22-page decision, wrote that the state clearly had the “right to increase, reduce, change, modify and alter the composition and site of the workforce,” as specified in a collective bargaining agreement with state employees. 

The decision upholds a post-pandemic executive order in November 2023 from Gov. Jim Pillen directing most state employees to in-person or field assignments, with few exceptions, by Jan. 2, 2024.

“In the absence of language in the collective bargaining agreement suggesting otherwise, it would be anomalous to interpret the agreement to grant the employer a unilateral right to make a particular decision but to reserve to the union the right to bargain over the procedures it will follow to implement that decision,” Papik wrote.

The Nebraska Association of Public Employees, which represents more than 8,000 state employees, or about 45% of state workers, argued that state officials still needed to bargain specifics.

But in agreeing to the labor agreement, the Supreme Court said, the union agreed that the state could require covered employees to work at an assigned location. 

Having agreed, the union could not force negotiations, Papik said.

Laura Strimple, a Pillen spokesperson, described the Supreme Court’s decision as a “huge victory for Nebraska’s taxpayers,” one that she said affirms the governor’s authority to ensure state public servants are working in the office.

“Nebraskans expect a fully functional and present government workforce, and the order honored that expectation,” Strimple said on behalf of Pillen. “The order has been upheld every step of the way, thanks to the brilliant work of the legal team who managed it throughout, led by Attorney General Mike Hilgers.”

Justin Hubly, executive director of the employees union, said Friday that “while disappointing, we now have clarity from our state’s highest court on when the state is required to bargain.”

“We appreciate the time the court took to hear our case, and we’re proud of our members who stood united to protect their rights,” Hubly said. “Since the court determined remote work is covered by our contract, we will continue to represent our members through our negotiated grievance process.”

Since the order took effect, more state employees have been in office or field assignments each calendar quarter, according to data the Nebraska Department of Administrative Services shared with the Examiner. 

The data does not offer a pre-executive order snapshot, but in-person or field assignments have increased from 85.8% of employees in January-March 2024 to 94.25% the same time this year.

The union sued to stop Pillen’s order shortly after he issued it. A three-member panel of the Nebraska Commission of Industrial Relations, a state labor court, paused the order to deliberate.

By July 2024, commissioners argued the labor contract already “covered” remote work and upheld Pillen’s order. They ruled that the union’s lawsuit was “frivolous” and in “bad faith.” The commission also ordered the union to pay $42,234.63 in state attorneys’ fees.

The union feared the fees could “chill” further labor disputes. Union leaders appealed.

The high court said justices were “ultimately not persuaded” by the argument that the state was “obligated” to bargain specifics. Justices said the case lacked merit but wasn’t “frivolous.”

“At the very least, NAPE could make a nonridiculous argument that the state had not clearly and unmistakably shown the parties had fully discussed the matter of remote work, and NAPE consciously yielded all rights to bargain over that issue,” Papik wrote.

Papik said the state “does not even attempt to defend” the commission’s conclusion that it had the right to award attorneys’ fees — the first time it had ever done so. State attorneys had estimated costs at $113,296.63 and said the lower commission award was “reasonable.”

“Public employees cannot strike in Nebraska, and the CIR has sole jurisdiction over prohibited practices petitions,” Hubly said. “We are pleased the Supreme Court recognized the importance of this case.”

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