NAPE Remote Work Dispute, Attorney Fees Reversed

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April 17, 2026 Get Citation Alerts Download PDF Add Note

Nebraska Assn. of Pub. Employees v. State

Nebraska Supreme Court

• Citations: 321 Neb. 208

• Docket Number: S-25-026

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (3.7K)

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Combined Opinion

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/17/2026 08:07 AM CDT

• 208 - Nebraska Supreme Court Advance Sheets 321 Nebraska Reports NEBRASKA ASSN. OF PUB. EMPLOYEES v. STATE Cite as 321 Neb. 208

Nebraska Association of Public Employees Local 61
of the American Federation of State, County,
and Municipal Employees, appellant, v.
State of Nebraska, appellee.
___ N.W.3d ___

Filed April 17, 2026. No. S-25-026.

1. Commission of Industrial Relations: Appeal and Error. Any order or decision of the Commission of Industrial Relations may be modi- fied, reversed, or set aside by an appellate court on one or more of the following grounds and no other: (1) if the commission acts without or in excess of its powers, (2) if the order was procured by fraud or is contrary to law, (3) if the facts found by the commission do not support the order, and (4) if the order is not supported by a preponderance of the competent evidence on the record considered as a whole.
2. Labor and Labor Relations: Contracts. If a topic is covered by a col- lective bargaining agreement, then the parties have no further obligation to bargain over the issue.
3. Contracts. The court must accord clear terms their plain and ordinary meaning as an ordinary or reasonable person would understand them.
4. Actions: Words and Phrases. A frivolous action is one in which a lit- igant asserts a legal position wholly without merit; that is, the position is without rational argument based on law and evidence to support the litigant’s position. The term “frivolous” connotes an improper motive or legal position so wholly without merit as to be ridiculous.
5. Actions. Any doubt about whether a legal position is frivolous or taken in bad faith should be resolved in favor of the one whose legal position is in question.

Appeal from the Commission of Industrial Relations.
Affirmed in part, and in part reversed.
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NEBRASKA ASSN. OF PUB. EMPLOYEES v. STATE
Cite as 321 Neb. 208

Abby Osborn, of Shiffermiller Law Office, P.C., L.L.O., and
Richard Griffin and Kara A. Naseef, of Bredhoff & Kaiser,
P.L.L.C., pro hac vice, for appellant.

Michael T. Hilgers, Attorney General, Zachary A. Viglianco,
and Cody S. Barnett for appellee.

Funke, C.J., Cassel, Stacy, Papik, Freudenberg, and
Bergevin, JJ., and Martinez, D.J.

Papik, J.
After Governor Jim Pillen issued an executive order gener-
ally prohibiting state executive branch employees from working
remotely, the Nebraska Association of Public Employees Local
61 of the American Federation of State, County, and Municipal
Employees (NAPE) demanded to bargain over the executive
order. The State of Nebraska refused the demand. NAPE
responded by filing a petition with Nebraska’s Commission of
Industrial Relations (CIR), alleging that the State had violated
Nebraska labor statutes by declining to negotiate. Following
a hearing, the CIR found NAPE’s claim lacked merit and dis-
missed it with prejudice. It also found that NAPE had pursued
the action in bad faith and, consequently, ordered NAPE to
pay the State over $40,000 for attorney fees and costs.
Now on appeal, NAPE challenges the CIR’s dismissal of its
petition and the award of attorney fees. We find no error in the
CIR’s dismissal of NAPE’s petition but conclude that the CIR
erred in its award of attorney fees. Accordingly, we reverse
the award of attorney fees, but otherwise affirm the decision
of the CIR.

I. BACKGROUND
1. Governor’s Executive Order and
NAPE’s Demand to Bargain
Governor Pillen entered an executive order in November
2023 that generally required state employees to work “in the
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office, facility, or field location assigned by their agency and
not from a remote location.” The executive order also pro-
vided, however, that “[a]gency heads” could grant exceptions
to individual employees in some circumstances. The executive
order allowed exceptions to be granted (1) for employees
whose assigned work hours were outside normal business
hours, (2) for employees who moved away from their original
office duty location “and for whom no reasonable in-office
arrangement is possible,” (3) when agencies are at “full build-
ing occupancy and new office space would have to be acquired
at additional cost,” (4) when an agency head “determines that
an exception is necessary to sustain critical operations in a
business area with a workforce shortfall,” and (5) for “[a]ny
other exception or circumstances imposed by law.”
NAPE, a labor union representing many State employees,
demanded to bargain over the remote work executive order,
asserting that remote work was a mandatory subject of bar-
gaining. The State declined to bargain over the issue. It took
the position that the existing collective bargaining agreement
permitted the implementation of the executive order regarding
remote work and that the State was therefore not obligated to
bargain over it.
2. CIR Proceedings
NAPE responded by filing a petition in the CIR. The peti-
tion alleged that the State had engaged in a prohibited labor
practice under Neb. Rev. Stat. §§ 48-824 (Reissue 2021) and
81-1386 (Reissue 2024) by refusing to negotiate over a man-
datory subject of bargaining.
At a hearing on NAPE’s prohibited practices petition, the
CIR received the then-operative collective bargaining agree-
ment between NAPE and the State. Relevant to this appeal,
paragraph 3.8 of that agreement provided that the State had
the “right to increase, reduce, change, modify and alter the
composition and site of the work force.” Paragraph 3.12 of
the agreement provided that the State also retained the right
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“to adopt, modify, change, enforce, or discontinue any existing
rules, regulations, procedures or policies.”
The CIR also received evidence regarding the negotiation
of the operative collective bargaining agreement. Relevant to
this appeal, the CIR received evidence that during discussions
regarding the collective bargaining agreement, NAPE proposed
a provision that would have allowed employees the right to
request remote work assignments and added that such requests
“will not be unreasonably denied.” NAPE’s chief negotiator
testified that the State was not willing to discuss NAPE’s pro-
posed remote work language, saying that it was a “nonstarter.”
NAPE then withdrew its remote work proposal. NAPE’s chief
negotiator admitted that employees received record salary
increases in the finalized collective bargaining agreement.
After the hearing, the CIR dismissed NAPE’s prohibited
practices petition with prejudice. The CIR concluded that the
State was not obligated to bargain over the remote work
executive order because even if it was a mandatory subject of
bargaining, the issue was “‘covered by’” the existing collec-
tive bargaining agreement. The CIR explained that under the
contract coverage rule adopted by this court, see Douglas Cty.
Health Ctr. Sec. Union v. Douglas Cty., 284 Neb. 109, 817
N.W.2d 250 (2012), if an issue is covered by the collective
bargaining agreement, the parties are not obligated to bargain
over it even if it would otherwise be a mandatory subject of
bargaining. The CIR concluded that language in the collec-
tive bargaining agreement permitted the State to “unilaterally
change work sites and related policies.”
Alternatively, the CIR found that NAPE had waived the
right to bargain over the remote work policy. In reaching this
conclusion, the CIR relied on the evidence introduced at the
hearing that NAPE made but later withdrew a remote work
policy during the negotiations for the governing collective
bargaining agreement.
The CIR also found that the State was entitled to an award
of attorney fees. In its order, the CIR wrote that NAPE could
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not have “reasonably or in good faith believed they would
prevail by bringing this case” before the CIR. The CIR sug-
gested that NAPE instead brought the case to delay the imple-
mentation of the executive order or to increase its member-
ship numbers. The CIR identified one of its own rules, Rules
of the Nebraska Commission of Industrial Relations 42 (rev.
2015) (Rule 42), as well as Neb. Rev. Stat. § 25-824 (Reissue
2016) as the basis for its award of attorney fees. The CIR
ordered NAPE to pay the State $42,234.63 for attorney fees
incurred in the matter.
NAPE filed a timely appeal.

II. ASSIGNMENTS OF ERROR
NAPE assigns many errors on appeal. We have condensed
and paraphrased those assignments as follows: (1) The CIR
erred in finding that NAPE’s prohibited practices petition
lacked merit, and (2) the CIR erred in its award of attorney
fees to the State.

III. STANDARD OF REVIEW
[1] Any order or decision of the CIR may be modified,
reversed, or set aside by an appellate court on one or more of
the following grounds and no other: (1) if the CIR acts with-
out or in excess of its powers, (2) if the order was procured
by fraud or is contrary to law, (3) if the facts found by the
CIR do not support the order, and (4) if the order is not sup-
ported by a preponderance of the competent evidence on the
record considered as a whole. Douglas Cty. Health Ctr. Sec.
Union, supra.

IV. ANALYSIS
1. Dismissal of NAPE’s Petition
NAPE’s first argument in this appeal is that the CIR erred
by dismissing its petition. NAPE argues that it proved the State
engaged in a prohibited labor practice and that the CIR erred
by finding otherwise.
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NAPE alleged in this case that the State violated §§ 48-824
and 81-1386 by refusing its demands to bargain over the
executive order generally prohibiting covered employees from
working remotely. Under § 48-824(1), “[i]t is a prohibited
practice for any public employer . . . to refuse to negotiate
in good faith with respect to mandatory topics of bargain-
ing.” See, also, Employees United Labor Assn. v. Douglas
Cty., 284 Neb. 121, 124, 816 N.W.2d 721, 725 (2012) (under
§ 48-824(1), “it is a ‘prohibited practice’ for any state gov-
ernment employer to refuse to negotiate in good faith with
employee union representatives on mandatory topics of bar-
gaining”). Section 81-1386 contains similar language. Because
no party to this case contends that § 81-1386(1) imposes
obligations beyond those imposed by § 48-824, we limit our
consideration to § 48-824.
We could begin our review in this case by considering
whether NAPE demanded to enter negotiations regarding a
mandatory topic of bargaining. The parties disagreed on this
point before the CIR and renew those arguments before us on
appeal. But the CIR did not decide whether NAPE demanded
to bargain over a mandatory subject of bargaining. It instead
relied on the “contract coverage rule,” Douglas Cty. Health
Ctr. Sec. Union v. Douglas Cty., 284 Neb. 109, 117, 817
N.W.2d 250, 256 (2012), and concluded that because the par-
ties’ collective bargaining agreement covered the issues on
which NAPE sought to bargain, the State had no obligation
to bargain over those issues even if they might otherwise be
mandatory subjects of bargaining. We begin our analysis with
whether that determination by the CIR was correct, but we
first provide some background regarding the contract cover-
age rule.
(a) Contract Coverage Rule Background
[2] In determining whether a public employer has commit-
ted a prohibited labor practice by refusing a union’s demand
to bargain, there is often this threshold question: whether the
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collective bargaining agreement already covers what would
otherwise be a mandatory subject of bargaining. See Fraternal
Order of Police v. City of York, 309 Neb. 359, 960 N.W.2d 315
(2021). If a topic is covered by a collective bargaining agree-
ment, then the parties have no further obligation to bargain
over the issue. Id.
We adopted the contract coverage rule in Douglas Cty.
Health Ctr. Sec. Union, supra. We found persuasive the rea-
soning of federal circuit courts, particularly the U.S. Court of
Appeals for the D.C. Circuit, that had adopted the rule in the
context of federal labor law. See id. We have subsequently
looked to opinions from the D.C. Circuit for guidance in apply-
ing the contract coverage rule, see City of York, supra, and do
so again in this case.
The rationale for the contract coverage rule is that when a
union and an employer enter into a collective bargaining agree-
ment that covers an issue, the parties have already bargained
over and settled that issue. Therefore, they should not be forced
back to the negotiating table to bargain over it again while the
agreement is in effect. See, e.g., Tramont Manufacturing, LLC
v. N.L.R.B., 890 F.3d 1114, 1120 (D.C. Cir. 2018) (contract
coverage rule “rests on the rationale that, once a union and
an employer enter into a collective-bargaining agreement, the
union has exercised its bargaining right”) (emphasis in origi-
nal) (internal quotation marks omitted); N.L.R.B. v. U.S. Postal
Service, 8 F.3d 832, 836 (D.C. Cir. 1993) (“the duty to bargain
. . . does not prevent parties from negotiating contract terms
that make it unnecessary to bargain over subsequent changes
in terms or conditions of employment”); City of York, 309
Neb. at 372, 960 N.W.2d at 325 (“[a] subject covered by a
collective bargaining agreement has already been fully nego-
tiated, and the public employer, by following the agreement’s
provisions, does not refuse . . . to negotiate in good faith with
respect to mandatory topics of bargaining”). Put another way,
the rule ensures that when an issue is covered by a collective
bargaining agreement, “there is no continuous duty to bargain
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[over that issue] during the term of [the] agreement.” U.S.
Postal Service, 8 F.3d at 836.
To determine whether the contract coverage rule applies,
courts engage in “contract interpretation.” Douglas Cty. Health
Ctr. Sec. Union v. Douglas Cty., 284 Neb. 109, 116, 817
N.W.2d 250, 256 (2012). See, also, Fraternal Order of Police
v. City of York, 309 Neb. 359, 960 N.W.2d 315 (2021). “[A]
subject may be covered by an agreement even if the agreement
does not clearly and unmistakably address that particular sub-
ject.” Wilkes-Barre Hosp. Company, LLC v. N.L.R.B., 857 F.3d
364, 376 (D.C. Cir. 2017). In addition, an employer’s unilat-
eral decision may be covered by a collective bargaining agree-
ment even if the agreement does not “specifically mention” or
“specifically address” that decision. Id. at 377 (internal quota-
tion marks omitted). See, also, City of York, supra. A subject
is covered if it is merely “‘within the compass of’ the terms of
the agreement.” Wilkes-Barre Hosp. Company, LLC, 857 F.3d
at 377 (quoting U.S. Postal Service, supra). See, also, City
of York, supra. At the same time, “vague, all-inclusive state-
ments that employers ‘may do whatever they please’” do not
establish that all issues are covered by a collective bargaining
agreement. Id. at 373, 960 N.W.2d at 325.
In describing the contract coverage rule, the D.C. Circuit
has said that “[i]n short, the courts attempt to interpret col-
lective bargaining contracts so as to respect the agreements
reached by the parties who made them.” U.S. Postal Service,
8 F.3d at 836. It has also said that courts may not “abrogate a
lawful agreement merely because one of the bargaining parties
is unhappy with a term of the contract and would prefer to
negotiate a better arrangement.” Id.
A case from the U.S. Court of Appeals for the Seventh Circuit
offers a concise illustration of how the contract coverage rule
works. In Columbia College Chicago v. N.L.R.B., 847 F.3d 547
(7th Cir. 2017), a union alleged that an employer, a private col-
lege, had violated federal labor law by unilaterally reducing the
credit hours for several courses the college offered, rather than
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bargaining with the union over the reduction. A provision of
the parties’ collective bargaining agreement, however, provided
that the college had the right to “‘modify . . . all aspects of
educational policies and practices,’” including the “‘modifica-
tion [or] alteration . . . of any . . . course.’” Id. at 549. Because
“[r]educing the number of credit hours for a course consti-
tute[d] a modification or alteration of that course,” the Seventh
Circuit concluded that the contract coverage rule applied and
the college was not obligated to bargain over the reduction in
credit hours. Id. at 553.
(b) Contract Coverage Rule Applied
With the foregoing background in mind, we now address
NAPE’s arguments that the CIR erred when it determined
that the contract coverage rule applied and, accordingly, that
the State was not obligated to accede to NAPE’s demands
to bargain. For reasons we will explain, we find no merit to
NAPE’s arguments.
As set forth above, paragraph 3.8 of the collective bar-
gaining agreement provides that the State has the right to
“increase, reduce, change, modify and alter the composition
and site of the work force.” Although there are perhaps other
provisions of the collective bargaining agreement that bolster
the argument that the contract coverage rule applies, we find
that the language of paragraph 3.8, standing on its own, covers
NAPE’s demand to bargain.
[3] In paragraph 3.8, the parties agreed that the State could
“change” the “site” of “the work force.” When interpreting
contracts, the court must accord clear terms their plain and
ordinary meaning as an ordinary or reasonable person would
understand them. Ray Anderson, Inc. v. Buck’s, Inc., 300 Neb.
434, 915 N.W.2d 36 (2018). We find that the meaning of each
of these terms is clear. In this context, the word “site” would
be understood to refer to location, while “the work force”
would be understood to refer to all covered employees collec-
tively. See, The New Oxford American Dictionary 1596 (2001)
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(defining “site” as “a place where a particular event or activity
is occurring or has occurred”); Black’s Law Dictionary 1671
(12th ed. 2024) (defining “site” as “[a] place or location”).
See, also, The New Oxford American Dictionary, supra at
1944 (defining “work force” as “the people engaged in or
available for work, either in a country or area or in a partic-
ular company or industry”); Black’s Law Dictionary, supra at
1930 (defining “work force” as “[c]ollectively, all the workers
engaged in a particular activity or enterprise”).
Considering all its terms, paragraph 3.8 gives the State the
authority to change the location where covered employees
are expected to perform their work. Just as the collective bar-
gaining language in Columbia College Chicago v. N.L.R.B.,
847 F.3d 547 (7th Cir. 2017), authorized the employer to
reduce the number of credit hours for a course, paragraph
3.8 gives the State authority to require covered employees
who previously worked at a remote location to now work at
an assigned office or field location. The executive order thus
falls “within the compass” of paragraph 3.8. See Fraternal
Order of Police v. City of York, 309 Neb. 359, 375, 960
N.W.2d 315, 326 (2021).
NAPE does not really dispute the reading of paragraph
3.8 we set forth above. Instead, NAPE takes the position that
notwithstanding this reading of paragraph 3.8, the contract
coverage rule still does not apply. NAPE offers several argu-
ments in support of this position, some of which merit more
analysis than others. We address each below, beginning with
those that require relatively little discussion.
First, NAPE argues that the contract coverage rule does
not apply because the collective bargaining agreement does not
specifically mention remote work. But that argument does
not even get off the ground. As we explained above, a subject
need not be specifically mentioned or clearly and unmistak-
ably addressed for the contract coverage rule to apply. All
that is required is that the employer’s decision fall “within
the compass” of terms of the agreement. See City of York,
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309 Neb. at 375, 960 N.W.2d at 326. And those terms can be
broad. See, e.g., Chicago Tribune Co. v. N.L.R.B., 974 F.2d
933, 937 (7th Cir. 1992) (a management rights clause “can
be drawn so broadly as to leave no doubt that a particular
regulation was intended to be within its scope”). Here, the
collective bargaining agreement gave the State the right to
make changes to where covered employees must work. As we
have explained, this language encompassed the decision to
generally prohibit remote work, even if remote work was not
specifically mentioned.
Having failed in its argument that paragraph 3.8 is not suf-
ficiently specific to trigger the contract coverage rule, NAPE
tries an argument that it is too broad for the rule to apply. But
this argument fares no better. Although we have recognized
that “vague, all-inclusive statements that employers ‘may
do whatever they please’ are insufficient to establish that all
topics are thereby covered by a collective bargaining agree-
ment,” City of York, 309 Neb. at 373, 960 N.W.2d at 325,
paragraph 3.8 does not even approach this standard. Rather
than giving the State carte blanche in all areas, paragraph 3.8
gives the State discretion to make changes to “the composi-
tion and site of the work force.”
In addition to its arguments that the collective bargaining
agreement does not cover remote work at all, NAPE makes
an alternative, more nuanced argument. Here, NAPE acknowl-
edges that paragraph 3.8 of the collective bargaining agreement
may have authorized the State to generally prohibit remote
work. But, according to NAPE, even if that is so, the contract
coverage rule would still not relieve the State of all obligations
to bargain.
NAPE argues that for the contract coverage rule to apply,
the collective bargaining agreement had to spell out the pro-
cedures the State would follow if it decided to change poli-
cies regarding remote work. More specifically, NAPE argues
that even if paragraph 3.8 of the collective bargaining agree-
ment permitted the State to generally prohibit remote work,
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the State was still obligated to bargain over the exceptions
to the remote work prohibition listed within the executive
order. On this point, NAPE argues that because the collec-
tive bargaining agreement does not address those exceptions,
the contract coverage rule does not relieve the State from
the obligation to bargain over them. We mention one exam-
ple to illustrate NAPE’s contention: NAPE points to the
exception in the executive order that permits agency heads
to allow for a remote work arrangement if the agency does
not have available office space. NAPE argues that because
the collective bargaining agreement does not address what
procedures the State will follow if an agency lacks necessary
office space, the State was obligated to bargain with NAPE
over the “assignment procedures, criteria and expenses if an
office is at full capacity.” Supplemental brief for appellant at
15. In sum, NAPE argues that even if the collective bargain-
ing agreement permitted the State to adopt the remote work
policy, it was still obligated to bargain with NAPE over how
this policy would be implemented.
NAPE claims that these arguments are supported by
Nebraska precedent. NAPE primarily relies on Douglas Cty.
Health Ctr. Sec. Union v. Douglas Cty., 284 Neb. 109, 817
N.W.2d 250 (2012), the case in which we first adopted the
contract coverage rule. At issue in that case was whether
an employer was obligated to bargain with a union after the
employer decided to outsource some jobs previously per-
formed by members of the union. We concluded that the union
was not obligated to bargain over the issue because the con-
tract coverage rule applied.
Even though we decided that the contract coverage rule
applied in Douglas Cty. Health Ctr. Sec. Union, supra, NAPE
claims that two aspects of our decision in that case support its
argument. First, NAPE identifies language from that decision
stating that to determine whether the contract coverage rule
applies, we would examine whether the governing collec-
tive bargaining agreement “fully defines the parties’ rights”
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as to the outsourcing of union jobs. Id. at 117, 817 N.W.2d
at 257 (internal quotation marks omitted). Second, NAPE
points out that in our explanation of why the contract covered
the outsourcing of union jobs, we said that a provision of
the collective bargaining agreement “specifically note[d] the
steps that [the employer] needs to follow” when outsourcing
would result in the elimination of jobs performed by union
members. Id. at 119, 817 N.W.2d at 258. NAPE argues that
the collective bargaining agreement in this case does not
“fully define” the parties’ rights because the agreement does
not address the various exceptions included in the executive
order. Brief for appellant at 27. It also reads our decision in
Douglas Cty. Health Ctr. Sec. Union to hold that the contract
coverage rule applies only if the collective bargaining agree-
ment spells out the procedures an employer must follow if it
exercises rights granted by the agreement. NAPE argues the
collective bargaining agreement in this case does not set forth
any such procedures.
NAPE also relies on a decision of the Nebraska Court of
Appeals, Public Assn. of Govt. Empl. v. City of Lincoln, 24
Neb. App. 703, 896 N.W.2d 630 (2017). In that case, the
Court of Appeals rejected an argument that the contract cov-
erage rule applied. The Court of Appeals appears to have
read Douglas Cty. Health Ctr. Sec. Union, supra, to hold that
the contract coverage rule can apply only if the collective
bargaining agreement spells out the steps the employer will
follow if it exercises discretion granted by the agreement. See
Public Assn. of Govt. Empl., 24 Neb. App. at 710, 896 N.W.2d
at 636 (“the Supreme Court concluded that the issue of sub-
contracting of bargaining unit jobs was clearly covered by
the applicable [collective bargaining agreement], because the
[collective bargaining agreement] specifically noted the steps
that the [employer] needed to follow”) (emphasis supplied).
Unsurprisingly, NAPE argues that Public Assn. of Govt. Empl.
supports its position that the contract coverage rule does not
apply in this case because the collective bargaining agreement
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does not identify procedures the State is to follow if it makes a
change to its remote work policies.
While more compelling than its other arguments, we are
ultimately not persuaded by NAPE’s argument that the State
was obligated to bargain over issues related to the implemen-
tation of the executive order. To begin, NAPE’s reliance on
the “fully defines the parties’ rights” language from Douglas
Cty. Health Ctr. Sec. Union v. Douglas Cty., 284 Neb. 109,
117, 817 N.W.2d 250, 257 (2012) (internal quotation marks
omitted), fails to take account of other language in that same
opinion. While we did say in that case we would determine
whether the contract coverage rule applied by considering
whether the relevant collective bargaining agreement “fully
defines the parties’ rights,” id. (internal quotation marks omit-
ted), we also favorably quoted language from a D.C. Circuit
opinion stating that the contract coverage rule can apply
even if the relevant collective bargaining agreement does not
“specifically address . . . the full range of impact and imple-
mentation issues that might conceivably arise.” Id. at 118, 817
N.W.2d at 257 (internal quotation marks omitted) (quoting
Dept. of Navy, Marine Corps Logistics Base v. FLRA, 962
F.2d 48 (D.C. Cir. 1992)).
Considering our opinion in Douglas Cty. Health Ctr. Sec.
Union as a whole, we understand its “fully defin[ing] the par-
ties’ rights” language not to make the application of the con-
tract coverage rule depend on whether the collective bargain-
ing agreement addresses every potential issue that might arise
in the implementation of a policy that changes conditions of
employment, but to focus the inquiry on whether the terms
of the agreement authorize the employer to take the disputed
action. 284 Neb. at 117, 817 N.W.2d at 257 (internal quota-
tion marks omitted). This is consistent with our later state-
ment in Fraternal Order of Police v. City of York, 309 Neb.
359, 374, 960 N.W.2d 315, 326 (2021), that we determine
whether the contract coverage rule applies by considering
whether the employer’s action was “within the compass” of
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the collective bargaining agreement. When the action of the
employer is authorized by language within the agreement,
the collective bargaining agreement “fully defines the parties’
rights” as to that issue. Douglas Cty. Health Ctr. Sec. Union
v. Douglas Cty., 284 Neb. at 117, 817 N.W.2d at 257 (internal
quotation marks omitted).
With this understanding of Douglas Cty. Health Ctr. Sec.
Union in mind, NAPE’s argument that the State was obligated
to bargain over each of the exceptions to the general prohibi-
tion on remote work crumbles. The collective bargaining agree-
ment did not define the parties’ rights as to remote work any
less because Governor Pillen chose to make some exceptions
to the general rule prohibiting remote work arrangements. And
yet, for us to agree with NAPE, we would have to reach that
conclusion. What matters for purposes of the contract cover-
age rule is that the collective bargaining agreement authorized
the State to order employees to work at an assigned office or
field location, not whether it “specifically address[ed] . . . the
full range of impact and implementation issues that [could
have] conceivably arise[n]” from that directive. Douglas Cty.
Health Ctr. Sec. Union, 284 Neb. at 118, 817 N.W.2d at 257
(internal quotation marks omitted) (quoting Dept. of Navy,
Marine Corps Logistics Base v. FLRA, supra). Because the
collective bargaining agreement authorized the general prohi-
bition on remote work, it fully defines the parties’ rights as to
that issue, and the inclusion of exceptions within the executive
order makes no difference to that conclusion.
As for NAPE’s argument that the contract coverage rule
did not apply because the collective bargaining agreement
did not outline specific steps the State would take if it made
a change to remote work policies, we are again unpersuaded.
While our opinion in Douglas Cty. Health Ctr. Sec. Union
v. Douglas Cty., 284 Neb. 109, 119, 817 N.W.2d 250, 258,
(2012), did observe that the collective bargaining agreement
in that case listed “steps” the employer needed to follow
if it decided to outsource union jobs, we did not say that a
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collective bargaining agreement must list such steps for the
contract coverage rule to apply. To the extent the Court of
Appeals concluded otherwise in Public Assn. of Govt. Empl.
v. City of Lincoln, 24 Neb. App. 703, 896 N.W.2d 630 (2017),
that opinion is disapproved.
Not only did we not hold in Douglas Cty. Health Ctr. Sec.
Union that the relevant collective bargaining agreement must
list steps the employer will take if it makes a change to con-
ditions of employment for the contract coverage rule to apply,
we decline to adopt such a rule now. It would be inconsistent
with the “compass” test to hold that the contract coverage
rule can apply only if the collective bargaining agreement
outlines the specific procedures an employer will follow if
it makes some change to conditions of employment that the
collective bargaining agreement permits. See Fraternal Order
of Police v. City of York, 309 Neb. 359, 374, 960 N.W.2d 315,
326 (2021). As we have discussed, we have said that the con-
tract coverage rule applies if the employer’s action is “within
the compass” of the collective bargaining agreement. Id. But
the terms of a collective bargaining agreement could per-
mit the employer to take a particular unilateral action without
also listing the steps the employer will follow if it chooses to
take that action.
In Enloe Medical Center v. N.L.R.B., 433 F.3d 834 (D.C.
Cir. 2005), we understand the D.C. Circuit to have rejected an
understanding of the contract coverage rule similar to the one
advocated by NAPE in this case. In Enloe Medical Center,
there was no dispute that the governing collective bargaining
agreement permitted a hospital to adopt a mandatory on-call
policy for its nurse-employees. The union representing the
nurses, however, contended that the hospital was still required
to bargain with it over “the effects of that policy.” Id. at 837
(emphasis in original).
The D.C. Circuit rejected that argument and found the
contract coverage rule applied. The D.C. Circuit explained
that whether the contract coverage rule applied to excuse the
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hospital from bargaining over the effects of its decision was
“just as much a matter of ordinary contract interpretation as is
the initial determination of whether the agreement covers the
matter altogether.” Id. at 839. And, the D.C. Circuit added, “It
would be rather unusual . . . to interpret a contract as granting
an employer the unilateral right to make a particular decision
but as reserving a union’s right to bargain over the effects
of that decision.” Id. Because there was no language in the
contract or bargaining history suggesting the parties intended
to reserve such a right, the D.C. Circuit held that the contract
coverage rule applied. See, also, Columbia College Chicago
v. N.L.R.B., 847 F.3d 547 (7th Cir. 2017) (adopting Enloe
Medical Center analysis to determine whether contract cov-
erage rule applied to excuse employer from bargaining over
effects of decision).
Returning to this case, NAPE asks us to find that even if the
collective bargaining agreement authorized the State to change
its remote work policies, the State was still obligated to bar-
gain over the procedures it would follow in implementing that
decision because the agreement did not specifically discuss
such procedures. We decline NAPE’s invitation. We agree with
the D.C. Circuit that in the absence of language in the collec-
tive 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 fol-
low to implement that decision. It is more natural, in our view,
to interpret an agreement that gives the employer the author-
ity to make a particular decision to also confer the authority
to the employer to choose the procedures it will follow in
implementing that decision. In this case, that understanding is
only reinforced by paragraph 3.12 of the collective bargaining
agreement, which provided the State with the express right “to
adopt, modify, change, enforce, or discontinue any existing
rules, regulations, procedures or policies.” We are not con-
vinced by NAPE’s argument that the State was obligated to
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bargain over the procedures it would follow in implementing
the remote work executive order.
For reasons we have set forth, we conclude the CIR did not
err in finding that the contract coverage rule applied. We affirm
the dismissal of the prohibited practices petition on this basis.
2. Award of Attorney Fees
This leaves only NAPE’s argument that the CIR erred when
it awarded the State attorney fees and costs. NAPE argues that
an award of attorney fees was not authorized in this case by
either Rule 42 of the CIR or § 25-824. As we will explain, we
agree with NAPE on this point.
Starting with Rule 42 of the CIR, that rule addresses pro-
hibited practices petitions like the one NAPE filed in this case.
It provides:
A. A complaint filed for prohibited practices shall be
filed as a petition as otherwise governed by these rules.
Petitions alleging prohibited practices shall contain a
statement of the facts constituting the cause of action, in
ordinary and concise language, without repetition, and a
demand for the relief to which the party supposes itself
entitled. The petition shall also specify the sections and
subsections of the Nebraska statutes which have allegedly
been violated.
B. Relief under a prohibited practice petition may
include, but is not limited to:
1. A request for a cease and desist order;
2. A request for attorney’s fees; (a) Attorney’s fees
may be awarded as an appropriate remedy when the
[CIR] finds a pattern of repetitive, egregious, or willful
prohibited conduct by the opposing party. (b) Attorney’s
fees are a remedy used to reimburse the injured party’s
costs caused by the opposing party’s conduct. An award
of fees shall be granted in an amount sufficient to make
whole the injured party, and shall not be construed as a
sanction against the opposing party;
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1. A request to reimburse the fees withheld;
2. Reinstatement;
3. Payment of lost back wages; and,
4. Such other relief as may be deemed appropriate by the [CIR]. The CIR concluded that it could order NAPE to pay attorney fees under Rule 42 because it found that NAPE had engaged in “prohibited conduct” under that rule by pursuing its petition in bad faith. The State does not even attempt to defend the CIR’s con- clusion that Rule 42 authorized the award of attorney fees here, and we agree with NAPE that it did not. Rule 42 per- mits the CIR to award attorney fees in a prohibited practices case as a remedy for “repetitive, egregious, or willful pro- hibited conduct by the opposing party” (emphasis supplied). The reference to “prohibited conduct by the opposing party” in this context refers to conduct of the party opposing the petition that is prohibited by labor law, not the litigation con- duct of the petitioner. Rule 42 did not authorize the award of attorney fees here. [4,5] The State argues that attorney fees could be awarded under § 25-824(2) because NAPE’s prohibited practices peti- tion was frivolous. But a party seeking to establish that its opponent advanced a frivolous claim faces a steep climb. We have said that a frivolous action is one in which a lit- igant asserts a legal position wholly without merit; that is, the position is without rational argument based on law and evidence to support the litigant’s position. City of Omaha v. Professional Firefighters Assn., 309 Neb. 918, 963 N.W.2d 1 (2021). We have even gone so far as to say that the term “frivolous” connotes an improper motive or legal position so wholly without merit as to be ridiculous. Id. Not only is the standard high, we have added that any doubt about whether a legal position is frivolous or taken in bad faith should be resolved in favor of the one whose legal position is in ques- tion. Id.
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We have concluded that NAPE’s petition in this matter
lacked merit, but we cannot agree that it was so lacking in
legal support as to be frivolous. NAPE could plausibly point to
language in Douglas Cty. Health Ctr. Sec. Union and the Court
of Appeals’ decision in Public Assn. of Govt. Empl. to support
its argument that the contract coverage rule did not apply in
the absence of language in the collective bargaining agreement
setting forth the steps the State would follow if it changed its
remote work policies. While we were not ultimately persuaded
by NAPE’s arguments that the contract coverage rule did not
apply, those arguments were not frivolous.
In addition to concluding that the State was not obligated to
bargain with NAPE because the contract coverage rule applied,
the CIR alternatively determined that NAPE waived any right
to bargain over the remote work executive order. Because we
have concluded that the contract coverage rule applies, we need
not determine whether the CIR was correct to conclude that
NAPE also waived the right to bargain. For purposes of the
CIR’s award of attorney fees, however, we consider whether
NAPE’s claim that it had not waived the right to bargain was
frivolous. We conclude it was not.
Although it is possible for employees or their representa-
tives to waive the right to bargain on mandatory subjects of
bargaining, the burden of proving waiver is on the employer to
clearly and unmistakably prove that a waiver took place. See
Service Empl. Internat. v. Douglas Cty. Sch. Dist., 286 Neb.
755, 839 N.W.2d 290 (2013). The D.C. Circuit has said that,
in general, a waiver of the right to bargain “must be demon-
strated by an express statement in the contract to that effect.”
Gannett Rochester Newspapers v. N.L.R.B., 988 F.2d 198, 203
(D.C. Cir. 1993) (internal quotation marks omitted). The D.C.
Circuit and this court have both recognized that in some cir-
cumstances, a clear and unmistakable waiver could be implied
by the parties’ course of conduct. See, id.; Service Empl.
Internat., supra. But the D.C. Circuit has said for an employer
to show that a union clearly and unmistakably waived its rights
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through conduct, it must establish that the parties “consciously
explored or fully discussed the matter on which the union has
consciously yielded its rights.” Wilkes-Barre Hosp. Company,
LLC v. N.L.R.B., 857 F.3d 364, 378 (D.C. Cir. 2017) (internal
quotation marks omitted).
Given the clarity with which an employer must establish a
waiver and the difficulty in establishing that a claim is frivo-
lous, we cannot say that it was frivolous for NAPE to contend
that it had not waived the right to bargain over remote work.
Other than evidence that NAPE made a specific remote work
proposal and that the State refused to consider it, there was not
much evidence adduced at the CIR hearing as to the parties’
discussions regarding remote work. 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.
Because we find that neither Rule 42 of the CIR nor
§ 25-824(2) authorized an award of attorney fees in this case,
we find the CIR erred in its attorney fee award.

V. CONCLUSION
NAPE agreed to a collective bargaining agreement that per-
mitted the State to “change” the “site” of the “work force.” By
agreeing to this language, NAPE agreed that the State could
require covered employees to work at an assigned office or
field location. Having agreed to give the State that authority,
NAPE could not, through a prohibited practices petition, force
the State to bargain over that issue even if NAPE regretted
agreeing to the language above after Governor Pillen’s exec-
utive order was adopted. The CIR did not err in concluding
that the contract coverage rule applied and that therefore,
the State had no obligation to accede to NAPE’s bargaining
demand. We affirm the CIR’s dismissal of NAPE’s petition
on that basis.
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But while NAPE’s prohibited practices petition was not mer-
itorious, the CIR erred by requiring NAPE to pay the State’s
attorney fees. Under existing precedent, NAPE could make
nonfrivolous arguments that the State had an obligation to
bargain over the Governor’s executive order. Accordingly, we
reverse the CIR’s award of attorney fees.
Affirmed in part, and in part reversed.