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Nebraska Protective Services Unit, Inc., doi

as Fraternal Order of Police Lodge #88, appe

v. State of Nebraska and Nebraska Assoc

of Public Employees, Local 61 of th

Federation of State, County and M

Employees (NAPE/AFSCME), ap

___ N.W.2d ___

Filed April 26, 2018. No. S-17-916.

1. Administrative Law: Statutes: Appeal and Error. To the extent that 

the meaning and interpretation of statutes and regulations are involved, 

questions of law are presented, in connection with which an appellate 

court has an obligation to reach an independent conclusion irrespective 

of the decision made by the court below.

2. Administrative Law: Appeal and Error. A court accords deference to 

an agency’s interpretation of its own regulations unless plainly erroneous or inconsistent.

3. Commission of Industrial Relations: Administrative Law. Under 

Neb. Rev. Stat. § 48-809 (Cum. Supp. 2016), the Commission of 

Industrial Relations promulgated the Rules of the Nebraska Commission 

of Industrial Relations 9 (rev. 2015) to govern the processes of decertifying the existing collective bargaining agent for a particular bargaining unit.

4. ____: ____. The Commission of Industrial Relations is an administrative 

agency empowered to perform a legislative function.

5. Administrative Law. Generally, for purposes of construction, a rule or 

order of an administrative agency is treated like a statute.

6. ____. Absent a statutory or regulatory indication to the contrary, language contained in a rule or regulation is to be given its plain and ordinary meaning.

7. ____. A rule is open for construction only when the language used 

requires interpretation or may reasonably be considered ambiguous.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/18/2018 01:07 AM CDT
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8. Commission of Industrial Relations: Administrative Law: Labor 

and Labor Relations: Contracts: Pleadings: Time. For each agreement, contract, or understanding subject to the Rules of the Nebraska 

Commission of Industrial Relations 9(II)(C)(1) (rev. 2015) and a statutory bargaining period, a particular party may file a petition only within 

the period that occurs earlier in its particular circumstances.

9. Commission of Industrial Relations: Administrative Law: Public 

Officers and Employees: Pleadings: Time. Public employee bargaining units, created pursuant to Neb. Rev. Stat. § 81-1369 et seq. 

(Reissue 2014), must file any petition, under the Rules of the Nebraska 

Commission of Industrial Relations 9(II)(C)(1) (rev. 2015), during the 

period preceding the commencement of the statutorily required bargaining period in § 81-1379.

Appeal from the Commission of Industrial Relations. 

Affirmed.

Gary L. Young and Thomas Fox, of Keating, O’Gara, 

Nedved & Peter, P.C., L.L.O., for appellant.

Dalton W. Tietjen, of Tietjen, Simon & Boyle, for appellee Nebraska Association of Public Employees, Local 61 of 

the American Federation of State, County and Municipal 

Employees (NAPE/AFSCME).

No appearance for appellee State of Nebraska.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, an

JJ., and Derr and Urbom, District Judge

Funke, J

The appellant, Nebraska Protective Services Unit, Inc. 

(NPSU), doing business as Fraternal Order of Police Lodge 

#88, filed a petition with the Commission of Industrial 

Relations (CIR) requesting decertification of the certified collective bargaining agent for the protective service bargaining 

unit (PSBU) and certification of itself as PSBU’s new collective bargaining agent. The CIR ruled the petition was not 
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timely filed, under CIR rule 9(II)(C)(1),1 and dismissed the 

petition. We affirm.

BACKGROUND

The State Employees Collective Bargaining Act2 created the 

PSBU to represent the State of Nebraska “institutional security 

personnel, including correctional officers, building security 

guards, and similar classes.”3

The Nebraska Association of Public Employees, Local 61 

of the American Federation of State, County and Municipal 

Employees (NAPE/AFSCME), has been the certified collective bargaining agent for the PSBU since a 1991 election. 

As PSBU’s exclusive bargaining agent, NAPE/AFSCME is 

responsible for representing all PSBU employees in negotiating biennial collective bargaining agreements with the State of 

Nebraska, pursuant to § 81-1377(4).

The 2015-17 collective bargaining agreement between the 

State and PSBU was set to expire on June 30, 2017. In 

September 2016, NAPE/AFSCME, as PSBU’s collective bargaining agent, and the State began negotiations for a 2017-

19 collective bargaining agreement, pursuant to § 81-1379. 

Negotiations for the agreement were completed in January 

2017, and the contract was subsequently ratified by a PSBU 

employees’ vote and signed by representatives of both parties. 

The 2017-19 collective bargaining agreement had an effective 

date of July l, 2017.

In late August 2016, certain PSBU employees decided to 

attempt to decertify NAPE/AFSCME as PSBU’s exclusive 

bargaining agent. In October, these PSBU employees formed 

NPSU to organize the decertification effort and affiliated the 

organization with the Fraternal Order of Police as Lodge #88.

1 See Rules of the Nebraska Commission of Industrial Relations 9(II)(C)(1) 

(rev. 2015).

2 Neb. Rev. Stat. § 81-1369 et seq. (Reissue 2014).

3 § 81-1373(1)(f).
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On March 3, 2017, the NPSU filed a petition with the 

CIR, requesting a combination election to determine whether 

PSBU members wanted to (1) decertify NAPE/AFSCME as 

its bargaining unit and (2) certify NPSU as its new collective 

bargaining unit. The CIR clerk certified the signatures of 683 

PSBU employees, or 43 percent of the total employees, supporting the election requested by NPSU.

The CIR determined that NPSU had made a sufficient showing of interest to warrant an election, but it ruled an election 

would not be held and dismissed the petition, because NPSU 

failed to comply with the timeframe expressly required by 

rule 9(II)(C)(1). The CIR specifically rejected NPSU’s argument that a memorandum from CIR clerk Annette Hord, dated 

December 29, 1999 (Hord memo), interpreted rule 9(II)(C)(1) 

to permit public employee bargaining units to file within a later 

period, which NPSU had complied with.

NPSU filed a timely appeal to the Nebraska Court of 

Appeals, which was removed to this court by order of the clerk 

of the Supreme Court.4

ASSIGNMENTS OF ERROR

NPSU assigns, restated and consolidated, that the CIR erred 

in (1) finding that it did not timely file its petition, under rule 

9(II)(C)(1); (2) not ordering an election to be held; and (3) 

dismissing its petition.

STANDARD OF REVIEW

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 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 CIR do not 

support the order, and (4) if the order is not supported by a 

4 See § 81-1387(3).
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preponderance of the competent evidence on the record considered as a whole.5

[1,2] To the extent that the meaning and interpretation of 

statutes and regulations are involved, questions of law are 

presented, in connection with which an appellate court has an 

obligation to reach an independent conclusion irrespective of 

the decision made by the court below.6 However, we accord 

deference to an agency’s interpretation of its own regulations 

unless plainly erroneous or inconsistent.7

ANALYSIS

The Industrial Relations Act vests authority in the CIR to 

“determine questions of representation for purposes of collective bargaining for and on behalf of public employees”8

 but 

prohibits it from “order[ing] an election until it has determined 

that at least thirty percent of the employees in an appropriate unit have requested in writing that the [CIR] hold such an 

election.”9 Further, it provides that the CIR “may adopt all reasonable and proper regulations to govern its proceedings [and] 

the filing of pleadings.”10

[3] Under this authority, the CIR promulgated rule 9 to 

govern the processes of decertifying the existing collective 

bargaining agent for a particular bargaining unit. Regarding the 

period that the decertification process must be initiated within, 

CIR’s rule 9 provides:

II. Petitions Filed by an Employee, Employees, or a 

Labor Organization:

. . . .

5 § 81-1387(4).

6 In re Estate of Vollmann, 296 Neb. 659, 896 N.W.2d 576 (2017).

7 Melanie M. v. Winterer, 290 Neb. 764, 862 N.W.2d 76 (2015).

8 Neb. Rev. Stat. § 48-838(1) (Cum. Supp. 2016). See, also, § 81-1372.

9 § 48-838(3).

10 Neb. Rev. Stat. § 48-809 (Cum. Supp. 2016).
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C. Such a petition may only be filed:

1. Between the one-hundred twentieth (120th) day and 

the sixtieth (60th) days preceding either;

a. Termination of an existing agreement, contract or 

understanding, or

b. Preceding commencement of a statutorily required 

bargaining period, whichever is earlier.

The State Employees Collective Bargaining Act mandates 

that “[a]ll contracts involving state employees and negotiated pursuant to the Industrial Relations Act or the State 

Employees Collective Bargaining Act shall cover a twoyear period coinciding with the biennial state budget . . 

. .”11 Further, the State Employees Collective Bargaining Act 

requires:

The Chief Negotiator and any other employerrepresentative and the exclusive collective-bargaining 

agent shall commence negotiations on or prior to the 

second Wednesday in September of the year preceding the beginning of the contract period, except that the 

first negotiations commenced by any bargaining unit may 

commence after such September date in order to accommodate any unresolved representation proceedings. All 

negotiations shall be completed on or before March 15 of 

the following year.12

Both parties assert that rule 9(II)(C)(1) is unambiguous 

regarding the time in which a petition to decertify a collective 

bargaining agent may be filed.

NPSU contends that rule 9(II)(C)(1) permits it to choose 

to file its petition within either filing period. It contends that 

the disjunctive terms “either” and “or” mean that a party may 

choose between the two periods and that the phrase “whichever is earlier” does not restrict a party to a single period but, 

instead, simply requires a party to file its petition during the 

11 § 81-1377(4).

12 § 81-1379.
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next available period after deciding to decertify the collective 

bargaining agent. It cites the Hord memo as interpreting the 

rule as such.

NAPE/AFSCME contends that the phrase “whichever is 

earlier” is a qualifying factor to the disjunctive terms that 

limit the filing options available to a particular bargaining 

unit based on its circumstances. It argues that we should defer 

to the CIR’s interpretation, in this case, and that the Hord 

memo is not authoritative and not inconsistent with the CIR’s 

interpretation.

[4-7] The CIR is an administrative agency empowered to 

perform a legislative function.13 Generally, for purposes of construction, a rule or order of an administrative agency is treated 

like a statute.14 Absent a statutory or regulatory indication to 

the contrary, language contained in a rule or regulation is to be 

given its plain and ordinary meaning.15 A rule is open for construction only when the language used requires interpretation 

or may reasonably be considered ambiguous.16 As mentioned 

above, we accord deference to an agency’s interpretation of its 

own rules unless plainly erroneous or inconsistent.17

[8] We find that the language of rule 9(II)(C)(1) is not 

ambiguous or open to interpretation, and therefore, we do 

not consider the rules of construction suggested by the parties. As NPSU argues, “the word ‘or’, when used properly, is 

disjunctive.”18 Accordingly, rule 9(II)(C)(1) permits a petition 

13 Douglas Cty. Health Ctr. Sec. Union v. Douglas Cty., 284 Neb. 109, 817 

N.W.2d 250 (2012).

14 In re Petition of Golden Plains Servs. Transp., 297 Neb. 105, 898 N.W.2d 

670 (2017).

15 Id.

16 See id.

17 Melanie M., supra note 7.

18 Brief for appellant at 20, citing Liddell-Toney v. Department of Health & 

Human Servs., 281 Neb. 532, 797 N.W.2d 28 (2011). See, also, State v. 

Rask, 294 Neb. 612, 883 N.W.2d 688 (2016).
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to be filed within one of the two periods stated in the rule. 

However, as NAPE/AFSCME argues, the phrase “whichever 

is earlier” is an express qualifying factor that limits the option 

available to a particular party. Therefore, for each agreement, 

contract, or understanding subject to rule 9(II)(C)(1) and a 

statutory bargaining period, a particular party may file a petition only within the period that occurs earlier in its particular 

circumstances.

[9] In the case of public employee bargaining units, created 

pursuant to the State Employees Collective Bargaining Act, the 

only period available to file a petition is the period preceding 

the commencement of a statutorily required bargaining period. 

Unlike other bargaining units under the Industrial Relations 

Act, all public employee bargaining units are subject to the 

bargaining period under § 81-1379, which commences on the 

second Wednesday in September of the year preceding the 

beginning of the contract period.

This interpretation is consistent with the CIR’s decision in 

this case. Accordingly, the CIR’s decision was not contrary 

to law. In addition, as stated above, the CIR was specifically 

granted the authority to promulgate rule 9. Further, because 

the interpretation of rule 9 is a question of law, the other 

grounds for reversing its decision, under § 81-1387(4), do 

not apply.

We do not consider whether the Hord memo is an authoritative interpretation by the CIR, because we do not find its statements inconsistent with the plain meaning of the statute. The 

Hord memo stated, in relevant part, the following:

[The CIR clerk has] included information regarding the 

rules that have been amended or added and a brief explanation of the reason for the change or addition.

. . . .

Rules 9C and 9G have been amended to allow entities that have statutorily required bargaining periods the 

option to file a petition for decertification, whether it 

be by the employer or by an employee, employees, or a 
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labor organization, in a time period between the 120th and 

60th day preceding the commencement of that statutorily 

required bargaining period.

The use of the word “option” in the Hord memo did not 

indicate that a party could choose between the two options but 

merely conveyed that parties subject to a statutorily required 

bargaining period could now file a petition in a different period 

than the one that was previously available, i.e., “[b]etween the 

one-hundred twentieth (120th) day and the sixtieth (60th) days 

preceding [the t]ermination of an existing agreement, contract 

or understanding.”19 A party still retains the option to file no 

petition at all. Additionally, were we to read the Hord memo as 

NPSU suggests, it would not be entitled to deference based on 

its inconsistency with the inclusion of the phrase “whichever is 

earlier” in rule 9(II)(C)(1).

Because NPSU did not file its petition in the period required 

under rule 9(II)(C)(1), its petition was time barred. Therefore, 

the CIR did not err in denying NPSU’s request for an election 

and dismissing the complaint.

CONCLUSION

For the reasons set forth herein, we affirm the judgment of 

the CIR.

Affirm

19 CIR rule 9(II)(C)(1)(a).