NE labor court sides with Gov. Pillen’s order calling state employees back to the office

Justin Hubly, executive director of the Nebraska Association of Public Employees, leads a noon-hour news conference Dec. 7, 2023, in Lincoln regarding Gov. Jim Pillen's executive order mandating state employees return to in-peson offices by Jan. 2, 2024. (Zach Wendling/Nebraska Examiner)

LINCOLN — A Nebraska labor court has ruled on the side of Gov. Jim Pillen’s order to send remote workers back to their state offices — and went farther to harshly chastise the state’s biggest employee union for the “disingenuous maneuver.”

“The totality of the record before the Commission demonstrates that Petitioner [the employees union] engaged in a pattern of willful, flagrant, aggravated, persistent and pervasive prohibited misconduct by pursuing this action in bad faith,” the Nebraska Commission of Industrial Relations unanimously decided Thursday.

The 10-page ruling comes five months after a trial was held before the Lincoln-based commission on the topic that gripped the attention of state government employees and others across the state.

Central to the case is Pillen’s November executive order directing state workers to return to the office beginning Jan. 2, save for certain exceptions. The governor at the time said that the pandemic was over and that the “common-sense expectation” of the public is that state employees are to be working in a state office.

Nebraska Association of Public Employees leaders, representing more than 8,000 state workers — of which an estimated 1,300 worked remotely — immediately objected.

The union’s contention was that such a change in the terms and conditions of employment is a prohibited practice that can’t be done without bargaining between the union and the state.

The commission paused Pillen’s order Dec. 29 as it considered the issue.

Dismissed “with prejudice”

On Thursday, a three-member panel of the commission said the state had not violated the law and dismissed the challenge “with prejudice” — meaning it cannot be refiled. Commissioner Gregory Neuhaus signed the opinion. The governor appoints commission members .

Justin Hubly, executive director for NAPE, said the union “couldn’t disagree with the decision more” and that the decision “fails to acknowledge the realities of a 21st century work environment.” The union is considering an appeal to the Nebraska Supreme Court.

Hubly and other union leaders in December said “all Nebraskans will pay the price” of the executive order, and he emphasized that a second, more recent executive order, to eliminate vacant state positions after 90 days , would also add to employment vacancies.

“I was concerned then that it could exacerbate the problem,” Hubly told the Nebraska Examiner. “I think it’s only going to exacerbate it more at this point.”

Pillen described the ruling as a “vindication” of the state’s right to determine that workers come into work “where they can be the most productive.”

All public employees currently working remotely should be prepared to report for work in person starting Monday, July 15, Pillen said, as many other state workers have done since before, during and after the COVID-19 pandemic.

“I know they will come with a positive attitude that reflects their professionalism and determination to serve the people of the [State of] Nebraska,” Pillen said.

The commission wrote that the state employees’ collective bargaining agreement covered worksite assignments, including for telework, arguing the union must have been aware of it because it hadn’t challenged any revocation of remote work privileges in the past.

“The Petitioner’s own witnesses testified that they were aware that working from home was a privilege, not a right, that could be revoked by the employer at any time,” the decision states.

The union requested to negotiate regarding a list of questions, including parking availability, procedures if no in-person worksite was available and work policies during severe weather or other emergencies.

But the commission said the state had unilateral authority to set workplace locations and procedures and there was “no vagueness or ambiguity” in that authority.

Union ordered to pay attorney costs

The decision said NAPE could not believe in “good faith” that it would prevail in the case and said the case required a penalty be imposed on the union.

The punishment rendered requires the union to cover any attorney costs and fees the State of Nebraska incurred during the trial, which must be identified within the next 15 business days.

Hubly said that the penalty was “particularly concerning.” He worried it could have a chilling effect on other workers or unions in bringing labor disputes to the commission.

“Our union is a group of employees who’ve united together to protect the interests of all Nebraskans in this case,” Hubly said. “The claim that we brought it in ‘bad faith’ just to simply delay the implementation of the governor’s order is wrong.”

If anything, Hubly said, the commission delayed a decision for four months, adding, “If there were such a rush, well, why did they wait so long?”

The commission also determined that even if it hadn’t decided that the bargaining agreement covered telework, it could have dismissed the case anyway.

That’s because union leaders, during previous negotiations, had made and withdrawn a specific remote work policy and “in turn received a ‘historic’ and ‘record-breaking’ contract that providing bargaining unit members with ‘the largest salary increase in the 35-year history of the State Employees Collective Bargaining Act.’”

“Filing of the present petition was a disingenuous maneuver seemingly for the purpose of improperly delaying the implementation of EO 23-17 [the executive order] and boosting membership numbers using the subsequent press coverage,” the CIR decision states.

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