- 918 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

City of Omaha, appellant, v. Professional 

Firefighters Association of Omaha, 

Local 385, AFL-CIO, appellee.

___ N.W.2d ___

Filed August 6, 2021. No. S-20-735.

1. Arbitration and Award: Appeal and Error. In reviewing a decision 

to vacate, modify, or confirm an arbitration award, an appellate court is 

obligated to reach a conclusion independent of the trial court’s ruling as 

to questions of law. However, the trial court’s factual findings will not 

be set aside on appeal unless clearly erroneous.

2. Arbitration and Award: Contracts: Appeal and Error. Courts do not 

sit to hear claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts. A court may not 

overrule an arbitrator’s decision simply because the court believes that 

its own interpretation of the contract, or the facts, would be the better one.

3. Arbitration and Award: Federal Acts: Contracts. Arbitration in 

Nebraska is governed by the Federal Arbitration Act if it arises from 

a contract involving interstate commerce; otherwise, it is governed by 

Nebraska’s Uniform Arbitration Act.

4. Arbitration and Award: Federal Acts. Evident partiality within the 

meaning of 9 U.S.C. § 10 (2018) exists when a reasonable person 

would have to conclude that an arbitrator was partial to one party to 

the arbitration.

5. Judges: Recusal: Judgments. Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion directed to a 

trial judge.

6. Arbitration and Award: Motions to Vacate. Serious legal or factual 

error by an arbitrator does not, standing on its own, provide a basis for 

vacating an award.

Nebraska Supreme Court Online Library

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

08/13/2021 08:09 AM CDT
- 919 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

7. ____: ____. A court may not vacate an arbitration award governed by 

Nebraska’s Uniform Arbitration Act on the ground that the arbitrator 

manifestly disregarded the law.

8. Appeal and Error. Errors assigned but not argued will not be addressed 

by an appellate court.

9. Actions: Attorney Fees: Words and Phrases. A frivolous action is 

one in which a litigant 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.

10. 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 District Court for Douglas County: Leigh 

Ann Retelsdorf, Judge. Affirmed in part, and in part reversed.

Heidi A. Guttau and George E. Martin III, of Baird Holm, 

L.L.P., for appellant.

Michael P. Dowd and John E. Corrigan, of Dowd & Corrigan, 

L.L.C., for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Papik, J.

After the City of Omaha (City) sought to discharge Steve 

LeClair, a firefighter and the president of the Professional 

Firefighters Association of Omaha, Local 385, AFL-CIO 

(union), LeClair exercised his contractual right to challenge 

his discharge in arbitration. The arbitrator found that the City 

did not have just cause to discharge LeClair and ordered his 

reinstatement. The City responded by attempting to have the 

arbitration decision vacated in district court. The district court 

not only denied the City’s motion to vacate and confirmed the 

arbitration award, it found the City’s motion to vacate was 

frivolous and ordered it to pay the union’s attorney fees and 
- 920 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

costs. In this appeal filed by the City, we find that while the 

City’s motion to vacate was not frivolous, the district court did 

not err in refusing to vacate the arbitrator’s decision. We therefore reverse the award of attorney fees and costs, but otherwise 

affirm the decision of the district court.

BACKGROUND

November 2018 Incident and 

LeClair’s Termination.

On November 9, 2018, LeClair was off duty and socializing at a bar in Omaha, Nebraska. R.J., an African-American 

patron at the bar, alleged that at some point during that night, 

LeClair made sexually suggestive comments to her and then 

later approached her, said the words “white power,” and struck 

her in the back.

After R.J. filed complaints regarding the incident, LeClair 

was charged with assault and battery and disorderly conduct. 

He pleaded no contest to the charges and was sentenced to 6 

months’ probation.

In addition to the criminal charges, the City also pursued 

an internal investigation. After the conclusion of the internal 

investigation, the City issued a letter to LeClair in April 2019 

informing him that the City was discharging him from employment. LeClair promptly informed the City that he was invoking 

his right under the collective bargaining agreement between 

the City and the union (CBA) to challenge his discharge 

in arbitration.

Arbitration Hearing.

The parties agreed to an arbitrator, and a hearing was held 

before her in August 2019. The arbitration hearing lasted 3 days. 

Over 20 witnesses testified, and the arbitrator received nearly 

100 exhibits. We provide only a brief summary of the evidence 

presented at the hearing that is relevant to this appeal.

The City presented evidence that R.J. filed a citizen’s complaint with the Omaha Fire Department and later made a 
- 921 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

police report regarding the November 9, 2018, incident. The 

City presented evidence regarding the criminal and internal 

investigations it conducted after receiving R.J.’s complaints. 

It presented evidence that during the internal investigation, 

LeClair was instructed in a letter notifying him he was being 

placed on administrative leave not to discuss the investigation 

with other employees, and specifically not to engage in “unsolicited communications with OFD Investigator Captain Kim 

Remus.” The City presented evidence that LeClair nonetheless 

called Kimberly Remus shortly after receiving that instruction 

and brought up the investigation. Remus testified that when she 

spoke to LeClair, LeClair informed her that he had been placed 

on administrative leave and speculated that it was because the 

fire chief, Daniel Olsen, had seen him talking to Remus in her 

office a few days before. Remus testified that she informed 

LeClair that his visit to her office was not the reason and that 

LeClair then became silent for a moment, said goodbye, and 

hung up.

Olsen testified that when both investigations concluded, 

he reviewed the reports generated in the investigation and 

watched surveillance video of the incident. After reviewing 

these materials and the CBA, Olsen concluded that LeClair 

could be discharged under the CBA and that discharge was 

the appropriate sanction. Olsen explained that in deciding to 

discharge LeClair, he took into account that LeClair’s conduct 

would harm the reputation of the fire department.

At the arbitration hearing, LeClair attempted to show that 

the decision to discharge him was influenced by his prior 

political disputes with the City’s mayor, that the City’s investigations were unfair, and that the City’s choice to discharge him 

was excessive in light of his prior track record as an employee 

and the way in which the City had disciplined other firefighters for misconduct. As part of this effort, LeClair elicited testimony from Remus that after she received a voicemail from 

R.J. about the November 9, 2018, incident, Remus returned the 

call and instructed R.J. how to file a complaint, which was not 
- 922 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

something she usually did. The City’s human resources director 

also acknowledged he called R.J. to see if she was going to file 

a complaint after one of his initial contacts with her. LeClair 

also presented evidence that on the same day that police reports 

regarding R.J.’s complaint were provided to the City’s mayor 

and forwarded to persons within her office and to a member of 

the city council, the Omaha World-Herald newspaper published 

an article regarding R.J.’s accusations. Other evidence at the 

arbitration hearing included an acknowledgment from an investigating police officer that the scope of the investigation was 

abnormal for an alleged misdemeanor; an email from the City’s 

human resources director to one of the City’s prosecutors, 

asking if the prosecutor had provided LeClair’s attorney with 

the surveillance video of the incident and stating that he was 

fighting not to give LeClair the video prior to LeClair’s being 

interviewed for the internal affairs investigation; and evidence 

showing that a pretermination conference was conducted by an 

individual not employed by the City.

LeClair also presented evidence regarding his history with 

the fire department. LeClair began working for the fire department in 2002, with some interruptions for military service. 

The only discipline in LeClair’s file was a reprimand for being 

late for work in 2011. LeClair called a number of witnesses 

both from within and outside the fire department who generally testified that in their years of working with and knowing LeClair, they had never observed any acts of bigotry or 

racial discrimination, but that LeClair treated everyone equally. 

Evidence was also introduced that LeClair sought funding 

from an international firefighters union to establish a program 

to increase diversity in the fire department and that he encouraged his nephew, who testified he is “[h]alf black, half white,” 

to join the fire department. LeClair also introduced evidence 

regarding the discipline the City imposed upon other firefighters for misconduct.

LeClair testified at the arbitration hearing. He denied ever 

engaging in racial discrimination during his life. Regarding 
- 923 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

the November 9, 2018, incident, LeClair denied “hitting on” 

R.J. or making any sexual advances toward her. He acknowledged that he elbowed R.J. and said “what white power,” 

but he also denied there was any racial animus or violence 

intended. LeClair testified that earlier in the evening, he had 

been discussing white nationalist groups with his colleagues. 

He claimed he was attempting to make a negative statement 

about those groups, but that R.J. was not a part of his earlier 

conversations and that his statement was “not the right venue, 

not the right person, not the right frame of mind,” and a mistake he regretted. He also testified that he did not realize the 

extent of the force he exerted on R.J. when he made contact 

with her.

Arbitrator’s Decision.

After the arbitration hearing, the arbitrator issued a written decision. The arbitrator described the issue before her as 

whether LeClair’s employment was terminated for just cause 

under the CBA. The arbitrator stated that she would analyze 

just cause through what she described as the “seminal definition” of the phrase set forth in Enterprise Wire Co., 46 Lab. 

Arb. Rep. (BNA) 359 (1966) (Enterprise Wire), a labor arbitration decision. The arbitrator explained that this definition 

required the consideration of the seven following questions:

1. Was the employer’s rule or managerial order reasonably related to the orderly, efficient and safe operation of 

the business?

2. Did the employer give any warning as to any possible discipline or consequences that could result from 

that employee’s action or behavior?

3. Prior to administering discipline, did the employer 

conduct an investigation to determine whether the 

employee did in fact violate or disobey a rule or order?

4. Was this investigation fair and objective?

5. Did this investigation uncover any substantial proof 

or evidence that the employee was guilty of violating or 

disobeying a direct order?
- 924 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

6. Did the employer obey all rules, orders and penalties evenhandedly and without discrimination to all 

employees?

7. Was the degree of discipline reasonably related to 

either the seriousness of the employee’s offense or to the 

record of past service?

In assessing these questions as they related to the City’s 

termination of LeClair, the arbitrator concluded that the first 

and second questions favored the City. The arbitrator concluded that LeClair had engaged in conduct for which he 

could be disciplined under the CBA and, in particular, that 

LeClair “engaged in conduct [that] was offensive to a citizen of 

Omaha” and had violated a direct order by contacting Remus 

after being instructed not to do so. The arbitrator also determined that LeClair should have known that such actions could 

result in discipline.

In answering the other Enterprise Wire questions, however, 

the arbitrator found several problems with the City’s decision to terminate LeClair’s employment. First, the arbitrator 

concluded that the City did not conduct a fair and impartial 

investigation. The arbitrator found several aspects of the City’s 

investigation problematic. She concluded that City officials 

wanted R.J. to file a complaint and pressured her to do so, 

that City officials had tried to withhold security video of the 

incident at the bar from LeClair, and that the City violated the 

CBA by not providing him with a pretermination hearing in 

front of an impartial City decisionmaker.

The arbitrator also found that the City did not apply its 

rules, orders, and penalties evenhandedly and without discrimination. On this issue, the arbitrator rejected the City’s argument that it had to discipline LeClair harshly because it would 

be detrimental to the City’s reputation if the incident became 

public. The arbitrator appeared to reject this argument based 

on her conclusion that it was the City that publicized the incident. The arbitrator also noted that the City had imposed only 

minor discipline when other firefighters had committed public 
- 925 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

misconduct. In particular, she noted that another firefighter 

had received only a 1-day suspension when he, while on duty 

and in uniform, “‘liked’” a post on Facebook that “denigrated 

Black Lives Matter and characterized [Barack] Obama as a 

terrorist.”

Finally, the arbitrator found that the degree of discipline 

was not commensurate either with the seriousness of LeClair’s 

offense or with his record of past service. Here, the arbitrator found important that there had been no other complaints 

regarding LeClair in his career, that the only prior discipline 

he had received was a single reprimand for being late for 

work in 2011, and that he had been active in the community 

and had worked for the inclusion of minorities in the fire 

department.

The arbitrator concluded that the City did not have just 

cause to terminate LeClair’s employment and ordered his reinstatement with backpay. The arbitrator did find that LeClair 

should be disciplined “for his violations of the contract and 

his act of insubordination,” and accordingly, she stated that his 

award of backpay should not include pay for the five shifts he 

missed while on administrative leave.

District Court.

Shortly after the arbitrator issued her decision, the City 

filed an application to vacate the arbitration award in district 

court, asserting that the arbitrator had engaged in prejudicial 

misconduct, demonstrated partiality or bias, exceeded her powers in various respects, and acted with manifest disregard for 

the law. It also alleged that the arbitrator’s decision violated 

public policy.

The union, named as the defendant in the action filed by 

the City, responded by filing a motion to confirm the arbitration award. In the motion, the union alleged that the City’s 

arguments in support of vacating the arbitration decision were 

frivolous and requested that the district court award it attorney 

fees and costs under Neb. Rev. Stat. § 25-824 (Reissue 2016).
- 926 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

Following a hearing at which it received as evidence both 

the record of the arbitration and the arbitrator’s decision, the 

district court issued an order denying the City’s application 

to vacate. It found that the City had shown only disagreement 

with the arbitrator’s factual findings and no evidence of misconduct or bias. The district court also found that the arbitrator had not exceeded her powers and that enforcement of the 

arbitrator’s decision would not violate public policy. Finally, 

the district court questioned whether it had the authority to 

vacate the decision on the grounds that the arbitrator acted in 

manifest disregard of the law, but concluded that even if it had 

such authority, the arbitrator did not act in manifest disregard 

of the law. Because the City failed to demonstrate a basis for 

vacating the arbitration decision, the district court declined to 

vacate the decision and instead confirmed it.

In a later order, the district court granted the union’s request 

for attorney fees and costs. It explained that the arbitrator’s 

decision could be vacated only for certain, limited reasons 

and not for mere legal or factual error. The district court 

concluded that the City presented claims of legal and factual 

error “dressed up as” bases for which arbitration awards can 

be reviewed. Consequently, it found that the City’s application 

to vacate the arbitration decision was frivolous and entered 

judgment in favor of the union for $16,020, the amount the 

union incurred in attorney fees and costs in resisting the City’s 

application.

After an unsuccessful motion to alter or amend in the district court, the City filed a timely appeal, which we moved to 

our docket.

ASSIGNMENTS OF ERROR

The City assigns, condensed, reordered, and restated, that 

the district court erred by (1) concluding that the arbitrator did not engage in prejudicial misconduct or demonstrate 

partiality or bias, (2) concluding that the arbitrator did not 

exceed her powers, (3) concluding that the arbitration decision should not be vacated on the grounds that the arbitrator 
- 927 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

manifestly disregarded Nebraska law, (4) concluding that the 

arbitration decision should not be vacated on the grounds that 

it violates public policy, (5) holding the City to an incorrect 

burden of proof to vacate the arbitration decision, (6) “implicitly rul[ing]” that the arbitration decision was not subject to 

review, and (7) finding that the City’s application to vacate the 

arbitration award was frivolous and awarding attorney fees and 

costs on that basis.

STANDARD OF REVIEW

[1] In reviewing a decision to vacate, modify, or confirm 

an arbitration award, an appellate court is obligated to reach 

a conclusion independent of the trial court’s ruling as to questions of law. However, the trial court’s factual findings will not 

be set aside on appeal unless clearly erroneous. Garlock v. 3DS 

Properties, 303 Neb. 521, 930 N.W.2d 503 (2019).

ANALYSIS

Legal Framework Governing Judicial 

Review of Arbitration Awards.

The City’s overarching argument in this appeal is that it was 

entitled to terminate LeClair’s employment under the CBA 

and that the arbitrator’s decision ordering his reinstatement 

should have been set aside by the district court. The City and 

the union agreed, however, that a dispute like this would be 

decided by an arbitrator. When parties agree to have an arbitrator resolve a dispute, the law provides little room for a court to 

undo the arbitrator’s decision.

If courts reviewed the decisions of arbitrators as if they 

were decisions of lower courts, the parties’ agreement to arbitrate would be upset and the purpose of arbitration would be 

frustrated. The parties’ agreement would be upset because 

parties to an arbitration agreement have agreed to accept the 

arbitrator’s view of the facts and the meaning of the contract 

rather than that of a court. See State v. Henderson, 277 Neb. 

240, 762 N.W.2d 1 (2009), disapproved on other grounds, 

Seldin v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d 768 
- 928 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

(2020). As we have previously explained, “[w]hen . . . parties 

[agree] to arbitration, they [agree] to accept whatever reasonable uncertainties might arise from the process.” Jones v. 

Summit Ltd. Partnership Five, 262 Neb. 793, 798, 635 N.W.2d 

267, 271 (2001) (internal quotation marks omitted).

Not only would searching judicial review of arbitration decisions disturb a private agreement, it would make arbitration, a 

process that is designed to be swift and informal, much less so. 

See, e.g., Hall Street Associates, L. L. C. v. Mattel, Inc., 552 

U.S. 576, 588, 128 S. Ct. 1396, 170 L. Ed. 2d 254 (2008) (reasoning that “full-bore legal and evidentiary appeals” of arbitration decisions would “rende[r] informal arbitration merely a 

prelude to a more cumbersome and time-consuming judicial 

review process”) (internal quotation marks omitted); Jones, 

262 Neb. at 798, 635 N.W.2d at 271 (“to allow full scrutiny 

of such awards would frustrate the purpose of having arbitration at all—the quick resolution of disputes and the avoidance 

of the expense and delay associated with litigation”) (internal 

quotations marks omitted).

[2] For these reasons, we have emphasized that strong deference is due an arbitrative tribunal. Henderson, supra. More 

specifically, courts do not sit to hear claims of factual or legal 

error by an arbitrator as an appellate court does in reviewing 

decisions of lower courts. Id. A court may not overrule an arbitrator’s decision simply because the court believes that its own 

interpretation of the contract, or the facts, would be the better 

one. Id.

[3] Although judicial review of arbitration decisions is 

limited, it is not nonexistent. Both the Federal Arbitration 

Act (FAA) and Nebraska’s Uniform Arbitration Act (NUAA) 

authorize courts to vacate arbitration awards under certain, 

specified circumstances. See, 9 U.S.C. § 10 (2018); Neb. 

Rev. Stat. § 25-2613(a) (Reissue 2016). We have previously 

said that arbitration in Nebraska is governed by the FAA if it 

arises from a contract involving interstate commerce; otherwise, it is governed by the NUAA. See Henderson, supra. 
- 929 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

A commentator has characterized that statement as a “gross 

oversimplification,” John M. Gradwohl, Arbitration: Interface 

of the Federal Arbitration Act and Nebraska State Law, 43 

Creighton L. Rev. 97, 115 (2009), but we need not revisit it 

here. In this case, both parties agree that the NUAA applies and 

the FAA does not, and so we proceed with that understanding 

as well.

The NUAA authorizes courts to vacate arbitration awards 

upon the application of a party under a number of circumstances. See § 25-2613(a). The City contends that two of 

the statutory bases for vacating an arbitration award under 

the NUAA apply in this case. It contends that the arbitrator 

acted with evident partiality and committed prejudicial misconduct under § 25-2613(a)(2) and exceeded her powers under 

§ 25-2613(a)(3).

The City also argues that the district court should have 

vacated the arbitration award because the arbitrator acted in 

manifest disregard of the law and because the arbitration 

award was contrary to public policy. While the NUAA does 

not expressly refer to either concept, the City contends courts 

nonetheless have the authority to vacate arbitration awards for 

these reasons. We consider in the sections below the City’s 

various arguments as to why the district court should have 

vacated the arbitration award, beginning with its claim that the 

arbitrator demonstrated evident partiality or committed prejudicial misconduct.

City Did Not Show That Arbitrator Demonstrated 

Evident Partiality or Committed 

Prejudicial Misconduct.

Although the City asserts that the arbitrator demonstrated 

evident partiality and committed prejudicial misconduct, it 

does not offer any explanation as to why the arbitrator would 

have been biased in favor of LeClair or against the City. 

Neither does it identify any act of purported misconduct by the 

arbitrator. Instead, the City points to certain factual findings 
- 930 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

of the arbitrator and insists that bias or misconduct is the only 

possible explanation for those findings.

[4] We do not appear to have previously set forth what a 

party must show in order to demonstrate evident partiality 

or prejudicial misconduct on the part of an arbitrator under 

§ 25-2613(a)(2). We have, however, explored what must be 

shown for a court to vacate an arbitration award under a similar 

section of the FAA. In Dowd v. First Omaha Sec. Corp., 242 

Neb. 347, 358, 495 N.W.2d 36, 43 (1993) (internal quotation 

marks omitted), we held that “evident partiality” exists under 

the FAA when “a reasonable person would have to conclude 

that an arbitrator was partial to one party to the arbitration.” 

Quoting Morelite Const. v. N.Y.C. Dist. Council Carpenters, 

748 F.2d 79 (2d Cir. 1984). For reasons we discussed in 

Dowd, supra, we believe that standard is appropriate under 

§ 25-2613(a)(2) as well.

[5] The City has not demonstrated that a reasonable person would have to conclude that the arbitrator was partial to 

LeClair. The City is attempting to show that the arbitrator was 

partial to LeClair based on her rulings alone. In the context of 

motions to recuse a judge for bias or partiality, we have stated 

that judicial rulings alone almost never constitute a valid basis 

for a bias or partiality motion directed to a trial judge. See In 

re Interest of Michael N., 302 Neb. 652, 925 N.W.2d 51 (2019). 

A corollary exists in the world of arbitration: Courts recognize 

that adverse rulings of an arbitrator alone will rarely evidence 

partiality. See, e.g., Scandinavian Reinsurance v. Saint Paul, 

668 F.3d 60 (2d Cir. 2012).

[6] We agree that the circumstances under which an arbitrator’s rulings alone could demonstrate the requisite partiality 

to vacate an award must be quite rare. As we will discuss 

in more detail below, serious legal or factual error by the 

arbitrator does not, standing on its own, provide a basis for 

vacating an award. See Oxford Health Plans LLC v. Sutter, 

569 U.S. 564, 133 S. Ct. 2064, 186 L. Ed. 2d 113 (2013). If 

even serious legal or factual errors do not justify vacatur of an 
- 931 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

arbitration award, it stands to reason that errors would have to 

be particularly egregious for their only possible explanation to 

be arbitrator bias.

Even assuming there are cases in which an arbitrator could 

demonstrate partiality based on rulings alone, we do not 

believe this is such a case. The factual findings to which the 

City objects could be based on inferences the arbitrator drew 

or credibility determinations she made. They might even be 

ordinary mistakes. See AT&T Mobility LLC v. Concepcion, 563 

U.S. 333, 350-51, 131 S. Ct. 1740, 179 L. Ed. 2d 742 (2011) 

(grounds for review under 9 U.S.C. § 10 of the FAA focus “on 

misconduct rather than mistake”). We do not find, however, 

that a reasonable person would have to conclude that the arbitrator was partial to LeClair or biased against the City. The district court thus did not err in declining to vacate the arbitration 

award under § 25-2613(a)(2).

City Did Not Show That Arbitrator 

Exceeded Her Powers.

The City also argues that the district court should have 

vacated the arbitration award because the arbitrator exceeded 

her powers. We do not appear to have previously addressed 

what a party must show in order to demonstrate that an arbitrator exceeded his or her powers under § 25-2613(a)(3) of 

the NUAA. Again, however, there is an analogous, indeed, 

in this instance, identical, provision of the FAA. See 9 

U.S.C. § 10(a)(4). And while we do not appear to have construed § 25-2613(a)(3)’s FAA counterpart, the U.S. Supreme 

Court has.

In Oxford Health Plans LLC, 569 U.S. at 569, the U.S. 

Supreme Court stated that a party attempting to vacate an arbitration award on the grounds that the arbitrator exceeded his or 

her powers “bears a heavy burden.” It then went on to outline 

just how heavy that burden is. “It is not enough,” the Court 

wrote, “to show that the [arbitrator] committed an error—or 

even a serious error.” Id. (internal quotation marks omitted). 
- 932 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

Instead, “[b]ecause the parties bargained for the arbitrator’s 

construction of their agreement, an arbitral decision even arguably construing or applying the contract must stand, regardless of a court’s view of its (de)merits.” Id. (internal quotation 

marks omitted). It is only when the arbitrator issues an award 

that simply reflects the arbitrator’s personal “notions of . . . justice” rather than “draw[ing] its essence from the contract” that 

a court may find that the arbitrator exceeded his or her powers. 

Id. (internal quotation marks omitted). Accordingly, the Court 

explained that the sole question presented when a party claims 

that an arbitrator exceeded his or her powers is whether the 

“arbitrator (even arguably) interpreted the parties’ contract, not 

whether he got its meaning right or wrong.” Id.

In interpreting provisions of the NUAA, we have previously taken guidance from federal court decisions interpreting similar provisions of the FAA. See, e.g., Jones v. Summit 

Ltd. Partnership Five, 262 Neb. 793, 635 N.W.2d 267 (2001). 

The parties in this case do not argue that we should interpret 

§ 25-2613(a)(3) differently than the U.S. Supreme Court has 

interpreted 9 U.S.C. § 10(a)(4). And given the limited judicial 

role in reviewing arbitration awards under Nebraska law, we 

find the narrow basis for finding that an arbitrator exceeded 

his or her powers under § 10(a)(4) of the FAA to be equally 

appropriate under § 25-2613(a)(3) of the NUAA. We will thus 

review the City’s claim that the arbitrator exceeded her powers 

under the rubric outlined by the U.S. Supreme Court in Oxford 

Health Plans LLC.

The City argues that the arbitrator exceeded her powers in 

a number of ways. It first claims that the arbitrator’s finding 

that the City lacked just cause cannot be squared with a section of the CBA that identified certain employee conduct as 

providing just cause for discipline. It also contends that the 

arbitrator exceeded her powers by using the seven questions 

from Enterprise Wire to analyze whether the City had just 

cause to discharge LeClair, by considering issues that were 

not before her, and by crafting her own discipline. We address 
- 933 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

each of these arguments below, beginning with the City’s argument that the arbitrator’s decision cannot be reconciled with 

the CBA.

Article 6, Section 1, of the CBA includes a list of actions that 

“are declared to be good cause for disciplinary action against 

any employee.” That list includes “[o]ffensive conduct or language toward the public or toward City Officers or employees,” 

“[i]nsubordination,” and “[c]ommission of acts or omissions 

unbecoming an incumbent of the particular office or position 

held, which render his reprimand, suspension, demotion, or 

discharge necessary or desirable for the economical or efficient 

conduct of business of the City or for the best interest of the 

City government.” The same section of the CBA provides that 

“[v]iolation of the provisions of this Section shall be punishable by reprimand, suspension, demotion, and/or discharge.” 

Separate sections of article 6 address the various forms of 

employee discipline available under the CBA: reprimand, suspension, demotion, and discharge. Those sections provide that 

each form of discipline may be imposed “for cause.” The 

CBA also provides that the City may “suspend, demote, discharge, or take other disciplinary action against employees for 

just cause.”

The City argues that these provisions of the CBA authorize 

it to impose upon an employee who engages in any of the 

actions listed in article 6, section 1, any form of discipline it 

chooses, up to and including discharge. And, the City adds, 

there is no dispute that LeClair engaged in such actions. In 

this regard, the City points out that LeClair admitted at the 

arbitration hearing that he violated Olsen’s direct order not to 

contact Remus and that he engaged in conduct “unbecoming an 

incumbent” of his position. The City also notes that the arbitrator found that LeClair violated a direct order by contacting 

Remus and engaged in conduct that was offensive to a citizen 

of Omaha. According to the City, once the arbitrator found that 

LeClair committed actions listed in article 6, section 1, the 
- 934 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

only possible conclusion that could follow was that the City 

had just cause to discharge LeClair.

The City may have identified a reasonable interpretation 

of the CBA. It is also possible that if the interpretation of 

the CBA the City advances was presented to a court, the 

City would have prevailed. Even so, it would not inevitably 

follow that the arbitrator exceeded her powers. As we have 

discussed above, an arbitrator does not exceed his or her powers merely by interpreting a contract differently than a court 

would. When it is claimed that an arbitrator acted in excess of 

his or her powers, the inquiry is not whether the arbitrator’s 

interpretation was correct, but whether the arbitrator was arguably interpreting the contract at all. See Oxford Health Plans 

LLC v. Sutter, 569 U.S. 564, 133 S. Ct. 2064, 186 L. Ed. 2d 

113 (2013).

We find relevant to this question the fact that the arbitrator stated in her written decision that LeClair committed 

“offenses listed as ones for which a firefighter can be disciplined,” but went on to find that the City lacked just cause 

to discharge LeClair. The arbitrator did not ignore the CBA’s 

list of actions for which the City could impose discipline. 

Instead, she appears to have interpreted the CBA to provide 

the City with just cause to impose some form of discipline on 

an employee who engages in such actions, but for the severity 

of the discipline that the City may impose to depend on the 

circumstances.

Under such a reading, the City might have just cause to 

impose some lesser form of discipline for a particular action 

of an employee falling within article 6, section 1, but not have 

just cause to discharge the employee for that action. We cannot 

say that such an understanding could only result from the arbitrator’s dispensing her own personal notions of justice, rather 

than “draw[ing] its essence from the contract.” Oxford Health 

Plans LLC, 569 U.S. at 569 (internal quotation marks omitted). Because the arbitrator arguably interpreted the CBA to 

make the question of whether there was just cause to discharge 
- 935 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

LeClair dependent on more than whether he committed acts 

identified in article 6, section 1, we find that the arbitrator did 

not exceed her powers by not ending the inquiry as to whether 

there was just cause for discharge after finding LeClair committed such acts.

The City next contends that the arbitrator acted in excess of 

her powers by analyzing just cause through the seven questions 

identified in the Enterprise Wire arbitration decision. Here, the 

City contends that even if the CBA allowed the arbitrator to 

separately analyze just cause after finding that LeClair committed acts identified in article 6, section 1, the CBA did not 

authorize the arbitrator to use the Enterprise Wire questions to 

complete that analysis.

We find that the arbitrator did not exceed her powers by 

analyzing whether the City had just cause to discharge LeClair 

through the seven questions of the Enterprise Wire test. The 

CBA did not expressly define “just cause,” and so the arbitrator had to look outside the CBA to assign some meaning to 

the phrase. Our task is limited to deciding whether the arbitrator was arguably adhering to contract interpretation when she 

analyzed just cause through the Enterprise Wire questions. We 

believe she was.

It is difficult to assign a meaning to a term like “just 

cause” without engaging in tautology. See Children Servs. 

v. Communication Workers, 113 Ohio St. 3d 291, 296, 865 

N.E.2d 31, 35 (2007) (observing that definition of “good 

cause” can be “nebulous and elusive”). The Enterprise Wire

questions provide some concrete considerations for a fact 

finder to evaluate when an action must be supported by just 

cause. Further, the specific questions that are part of the 

Enterprise Wire test do not strike us as so disconnected to the 

concept of just cause, that we could say the arbitrator strayed 

from contract interpretation in using them. We are not the first 

court to conclude that an arbitrator does not act in excess of 

his or her powers by analyzing just or good cause through the 

Enterprise Wire questions. See, e.g., Conoco, Inc. v. Oil, Chem. 
- 936 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

& Atomic Workers, 26 F. Supp. 2d 1310 (N.D. Okla. 1998); 

Children Servs., supra. See, also, Mario F. Bognanno et al., 

The Conventional Wisdom of Discharge Arbitration Outcomes 

and Remedies: Fact or Fiction, 16 Cardozo J. Conflict Resol. 

153, 157 (2014) (“it is reported that no definition of just cause 

is more widely recognized and accepted than that first articulated nearly fifty years ago in [Enterprise Wire]”).

The City asserts that rather than using the Enterprise Wire 

questions to assess whether there was just cause to discharge 

LeClair, the arbitrator should have analyzed good cause by 

using a test articulated in Stejskal v. Department of Admin. 

Servs., 266 Neb. 346, 665 N.W.2d 576 (2003). In that case, a 

state agency appealed a district court’s determination that the 

agency lacked just cause to discharge an employee in an action 

brought under the Administrative Procedure Act. At issue was 

whether the district court erred by finding that the employer 

lacked just cause. We stated that we had not defined “just 

cause” in this context but had stated that “‘good cause’ for 

dismissal is that which a reasonable employer, acting in good 

faith, would regard as good and sufficient reason for terminating the services of an employee, as distinguished from an arbitrary whim or caprice.” Stejskal, 266 Neb. at 351, 665 N.W.2d 

at 581. We then used that definition to assess the district court’s 

determination that just cause was lacking in that case.

The City suggests that the definition of “good cause” applied 

in Stejskal differs greatly from the Enterprise Wire questions 

used by the arbitrator. The City insists that whether the discipline arose after a fair and objective investigation, whether the 

discipline was consistent with that imposed on other employees, and whether the discipline accounted for the employee’s 

record of service are not mentioned in the Stejskal definition. 

Although undoubtedly different verbal formulations, it is not 

clear to us that there is a substantive difference between the 

Enterprise Wire questions and the Stejskal definition. Each 

of the questions the City claims are absent from the Stejskal 

definition would seem to be relevant to whether an employer’s 
- 937 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

decision to discharge an employee was done reasonably, in 

good faith, and not arbitrarily or with caprice, concepts that are 

expressly encompassed in the Stejskal definition.

In any event, the City has not shown the arbitrator exceeded 

her powers by not using the Stejskal definition to evaluate 

whether the City had just cause to discharge LeClair. The contention that Nebraska law required application of the Stejskal

definition is, at most, a claim that the arbitrator committed legal 

error. A party does not show that an arbitrator exceeded his or 

her powers even by showing that the arbitrator committed a 

serious legal error. See Oxford Health Plans LLC v. Sutter, 569 

U.S. 564, 133 S. Ct. 2064, 186 L. Ed. 2d 113 (2013).

Given our conclusion that the arbitrator did not exceed her 

powers by utilizing the Enterprise Wire questions, the City’s 

argument that the arbitrator exceeded her powers by considering issues not properly before her must fail. The City claims 

that by considering the fairness of its investigation, the consistency of its discipline decisions, and the quality of LeClair’s 

past record of service, the arbitrator weighed in on matters that 

were not submitted to her for decision. The arbitrator did not, 

however, consider these issues as independent subjects. Rather, 

she considered them as relevant to whether the City had just 

cause to discharge LeClair, an issue that was clearly submitted 

to her for decision.

Equally quick work can be made of the City’s claim that 

the arbitrator exceeded her powers by “substitut[ing] her own 

discipline.” Brief for appellant at 31. This objection is aimed 

at the arbitrator’s order that LeClair should lose five shifts 

of backpay for his actions. The City claims the arbitrator did 

not have the power to craft her own discipline for LeClair’s 

actions. The City, however, has not directed us to authority 

that supports its argument. The City cites cases in which courts 

have held that an arbitrator may not find that an employer has 

just cause to discharge an employee and then substitute his 

or her own discipline. See, e.g., 187 Concourse Associates 

v. Fishman, 399 F.3d 524 (2d Cir. 2005). Such cases have no 
- 938 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

application here; the arbitrator found the City lacked just cause 

to discharge LeClair.

Because the City has not shown that the arbitrator exceeded 

her powers, the district court did not err in refusing to vacate 

the arbitration award on this basis.

“Manifest Disregard of the Law” Is 

Not Basis to Vacate Arbitration 

Award Governed by NUAA.

The City next contends that the district court should have 

vacated the arbitration award because the arbitrator manifestly 

disregarded Nebraska law. The City argues that the arbitrator 

manifestly disregarded Nebraska law by determining whether 

the City had just cause to discharge LeClair without applying 

the definition of good cause applied in Stejskal v. Department 

of Admin. Servs., 266 Neb. 346, 665 N.W.2d 576 (2003).

Before we consider whether the arbitrator manifestly disregarded the law, however, we must first determine whether 

courts even have authority to vacate arbitration awards governed by the NUAA on this basis. Although the City can 

point to provisions of the NUAA that direct courts to vacate 

arbitration awards when “[t]here was evident partiality by an 

arbitrator,” see § 25-2613(a)(2), or when “arbitrators exceeded 

their powers,” see § 25-2613(a)(3), there is no provision in the 

NUAA that authorizes courts to vacate an arbitration award on 

the grounds that the arbitrator manifestly disregarded the law. 

The City claims that such power nonetheless exists, pointing to 

federal cases holding that arbitration awards governed by the 

FAA can be vacated if a court finds that the arbitrator acted in 

manifest disregard of the law. See, e.g., Jones v. Dancel, 792 

F.3d 395 (4th Cir. 2015).

Whether arbitration awards governed by the FAA can be 

vacated on the grounds that the arbitrator manifestly disregarded the law is a question on which courts have diverged. 

Like the NUAA, the FAA contains no express provision authorizing courts to vacate an arbitration award because the arbitrator manifestly disregarded the law. Although the City does 
- 939 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

identify some cases holding that the absence of statutory 

language does not preclude courts from vacating arbitration 

awards on the basis of manifest disregard of the law, see Jones, 

supra, several other courts have held that arbitration awards 

may be vacated only for the reasons enumerated in the FAA 

and that therefore, an arbitration award may not be vacated on 

the grounds that the arbitrator manifestly disregarded the law. 

See, e.g., Medicine Shoppe Intern. v. Turner Investments, 614 

F.3d 485 (8th Cir. 2010); Citigroup Global Markets, Inc. v. 

Bacon, 562 F.3d 349 (5th Cir. 2009). We recently sided with 

this latter group of courts, finding that the statutory grounds 

in the FAA for vacating arbitration awards are exclusive. See 

Seldin v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d 

768 (2020).

We do not appear to have ever recognized manifest disregard 

of the law as a basis to vacate an arbitration award governed by 

the NUAA. And although other courts have held that arbitration awards governed by similar statutes may be vacated for 

this reason, as we will explain, we are not persuaded that we 

should follow their lead when it comes to arbitration awards 

governed by the NUAA.

Some courts have concluded that even if the words “manifest 

disregard of the law” are not expressly mentioned by statute, 

“they have come to serve as a judicial gloss” on the language 

authorizing courts to vacate arbitration awards if arbitrators 

exceeded their powers. Johnson v. Wells Fargo Home Mortg., 

Inc., 635 F.3d 401, 414 (9th Cir. 2011). In other words, these 

courts appear to have concluded that arbitration awards may be 

vacated based on the arbitrator’s manifest disregard of the law 

because an arbitrator necessarily acts in excess of his or her 

powers if he or she manifestly disregards the law. We disagree 

with this proposition.

In deciding whether an arbitrator exceeded his or her power, 

the focus is, appropriately, on whether the arbitrator acted 

within the bounds of contractual authority. It is the parties’ 

agreement, after all, from which the arbitrator’s power derives. 
- 940 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

See Cornhusker Internat. Trucks v. Thomas Built Buses, 263 

Neb. 10, 11, 637 N.W.2d 876, 878 (2002) (“[a]rbitration is 

purely a matter of contract”). In contrast, as a Colorado appellate court has helpfully observed, the manifest disregard of the 

law standard looks not to whether the arbitrator stayed within 

the confines of contractual authority, but whether he or she 

deliberately ignored governing law in deciding the dispute. See 

Coors Brewing Co. v. Cabo, 114 P.3d 60 (Colo. App. 2004). 

Consequently, “[a]n arbitrator does not necessarily exceed his 

power when he does not properly apply the law.” Id. at 64.

Other courts have concluded that the authority to vacate 

arbitration awards on the basis that the arbitrator manifestly 

disregarded the law arises not from statute, but from common 

law. Maryland’s highest court, for example, held that its courts 

had such authority in WSC/2005 LLC v. Trio Ventures, 460 

Md. 244, 190 A.3d 255 (2018). It reasoned that Maryland’s 

enactment of its version of the Uniform Arbitration Act did 

not preempt earlier cases in which Maryland courts recognized 

a common-law authority to vacate arbitration awards if the 

arbitrator manifestly disregarded the law. Any attempt to find 

a similar common-law authority under Nebraska law, however, 

faces an immediate barrier. In Hartman v. City of Grand Island, 

265 Neb. 433, 657 N.W.2d 641 (2003), we rejected an argument that courts could, after the enactment of the NUAA, continue to vacate arbitration awards on common-law grounds not 

set forth in the NUAA. As we stated there, “[t]he role of the 

court [after enactment of the NUAA] is specifically addressed 

and limited by the [NUAA].” Hartman, 265 Neb. at 437, 657 

N.W.2d at 645.

We acknowledge that in State v. Henderson, 277 Neb. 240, 

762 N.W.2d 1 (2009), disapproved on other grounds, Seldin v. 

Estate of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020), 

we held that an arbitration award governed by the NUAA 

could be vacated on the grounds that it violated public policy, 

a ground also not mentioned in the NUAA. We do not, however, understand Henderson to have silently overturned our 
- 941 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

conclusion in Hartman that the NUAA eliminated previously 

existing common-law bases to vacate arbitration awards. Our 

recognition of authority to vacate arbitration awards in violation of public policy in Henderson was based on “the more 

general doctrine, rooted in the common law, that a court may 

refuse to enforce contracts that violate law or public policy.” 277 Neb. at 247, 762 N.W.2d at 6-7 (internal quotation 

marks omitted).

[7] We can discern no basis for courts to vacate arbitration 

awards governed by the NUAA on the grounds that the arbitrator manifestly disregarded the law. The Legislature authorized 

the vacatur of arbitration awards on several grounds, but did 

not identify an arbitrator’s manifest disregard of the law. To the 

contrary, the NUAA specifically provides that “[t]he fact that 

the relief was such that it could not or would not be granted by 

a court of law or equity is not ground for vacating or refusing 

to confirm the award.” § 25-2613(a). Given this direction from 

the Legislature and our generally limited review of arbitration awards, it strikes us as particularly inappropriate for this 

court to unilaterally prescribe a new basis on which arbitration 

awards can be vacated.

Because we hold that courts lack the authority to vacate 

arbitration awards governed by the NUAA on the grounds that 

the arbitrator manifestly disregarded the law, we find that the 

district court did not err by not vacating the arbitration award 

on that basis.

City Did Not Show That Enforcement 

of Arbitration Award Would 

Violate Public Policy.

The City’s final argument for why the district court should 

have vacated the arbitration award is that the award ordering 

LeClair’s reinstatement violates public policy. As alluded to 

above, in Henderson, this court held that courts may refuse to 

enforce arbitration awards governed by the NUAA if the award 

is “contrary to a public policy that is explicit, well defined, and 

dominant.” 277 Neb. at 250, 762 N.W.2d at 9.
- 942 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

Although we recognized violation of public policy as a 

basis for a court to refuse to enforce an arbitration award in 

Henderson, we also articulated a number of ways in which this 

doctrine was limited. First, we made clear that because parties 

to arbitration have agreed to have an arbitrator decide their 

dispute, a court may not, even when considering whether an 

arbitration award violated public policy, “revisit the arbitrator’s 

factual findings.” Id. at 244, 762 N.W.2d at 5. Second, we cited 

U.S. Supreme Court precedent characterizing the public policy 

exception as “narrow” and emphasizing that, when a party asks 

a court to vacate an arbitration award ordering an employee’s 

reinstatement on public policy grounds, the issue is not whether 

the employee’s conduct violated public policy, but whether the 

order to reinstate does so. State v. Henderson, 277 Neb. 240, 

249, 762 N.W.2d 1, 8 (2009), disapproved on other grounds, 

Seldin v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d 768 

(2020), citing Eastern Associated Coal Corp. v. Mine Workers, 

531 U.S. 57, 121 S. Ct. 462, 148 L. Ed. 2d 354 (2000). Finally, 

we also made clear that in order for an arbitration award to be 

vacated on public policy grounds, the public policy at issue 

must be “ascertained by reference to laws and legal precedents, 

not from general considerations of supposed public interests.” 

Henderson, 277 Neb. at 250, 762 N.W.2d at 9.

Despite the narrow nature of the power to vacate arbitration awards on the grounds that they violate public policy, we 

determined that the arbitration award at issue in Henderson

should be vacated on those grounds. In that case, the Nebraska 

State Patrol terminated the employment of a state trooper 

who had joined a Ku Klux Klan-affiliated organization, but 

an arbitrator ordered that he be reinstated. After exploring the 

history and ideology of the Ku Klux Klan, we found that the 

arbitrator’s award violated Nebraska’s public policy that “laws 

should be enforced without racial or religious discrimination, and the public should reasonably perceive this to be so.” 

Id. at 265, 762 N.W.2d at 18. We cautioned that this public 

policy “is only implicated by behavior of the gravest nature,” 
- 943 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

but concluded the trooper’s associating with the Ku Klux 

Klan, “arguably the most reviled, feared, violent, and racist 

organization in this country’s history,” qualified. Id. at 263, 

264, 762 N.W.2d at 17 (internal quotation marks omitted). We 

reasoned that Henderson had “endorsed a point of view that 

is completely antithetical to the principles of Nebraska law 

that he was bound by oath to enforce.” Id. at 265, 762 N.W.2d 

at 18.

The City contends that LeClair’s reinstatement violated a 

well-defined and dominant Nebraska public policy prohibiting 

discrimination or intimidation on the basis of race and gender. 

It also contends that his reinstatement violates public policy 

because it undermines the public’s perception that the City is 

committed to providing services without discrimination.

We do not question the City’s contention that Nebraska 

has a well-defined and dominant public policy prohibiting 

discrimination or intimidation on the basis of race or gender. 

See, e.g., Neb. Rev. Stat. § 28-111 (Reissue 2016) (imposing 

enhanced penalties if person commits certain criminal offenses 

because of victim’s race or gender). The more difficult task for 

the City is showing that LeClair’s reinstatement is so contrary 

to that public policy that the arbitrator’s award should not 

be enforced.

On this issue, the City asserts that LeClair engaged in discrimination and intimidation on the basis of race and gender 

in his interaction with R.J. at the bar and that thus, his reinstatement would violate Nebraska’s public policy against such 

behavior. Setting aside the fact that this argument appears to 

conflate the issue of whether LeClair’s actions violated public 

policy with the relevant question of whether his reinstatement 

would violate public policy, we cannot make our own factual 

findings that LeClair engaged in racial or gender discrimination or intimidation. Any such action would have to have been 

found by the arbitrator. See Henderson, supra. And, at least 

on the surface of her award, the arbitrator did not find that 
- 944 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

LeClair engaged in discrimination or intimidation on the basis 

of race or gender.

The City contends that despite any express finding of racial 

or gender discrimination or intimidation by LeClair, it can 

be clearly inferred that the arbitrator made such a finding. It 

points out that the arbitrator stated that LeClair made “inappropriate comments” to R.J. and “shoved her after the statement was made.” The City suggests that given the content 

of LeClair’s alleged statements and the fact that R.J. is an 

African-American woman, the arbitrator had to have found that 

LeClair discriminated against R.J. and intimidated her on the 

basis of race and gender.

We disagree with the City that the arbitrator necessarily 

found that LeClair engaged in discrimination or intimidation 

on the basis of race or gender by finding that he used inappropriate language and shoved R.J. LeClair admitted to using 

inappropriate language and making contact with R.J. while 

also disavowing that he was motivated by animus or otherwise 

acting on the basis of R.J.’s race or gender. We reference this 

testimony not to assess its credibility, but because the arbitrator might have credited it. Her general findings of misconduct 

on the part of LeClair do not necessarily demonstrate that she 

found LeClair engaged in discrimination or intimidation on the 

basis of race or gender.

Without a finding by the arbitrator that LeClair engaged in 

discrimination or intimidation on the basis of race or gender, 

the City is left with its argument that the arbitrator’s award 

should not be enforced because of the effect his reinstatement 

would have on the public’s perception of the City. This argument relies heavily on Henderson, where we held that public 

policy precluded reinstating the state trooper who joined a 

Ku Klux Klan-affiliated organization, in part, because his 

reinstatement “would severely undermine reasonable public 

perception” that “each citizen of Nebraska can depend on 

law enforcement officers to enforce the law without regard to 

race.” 277 Neb. at 263, 762 N.W.2d at 17. The City contends 
- 945 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

that, in the same way, LeClair’s reinstatement would undermine the public’s perception that citizens of Omaha can depend 

upon the City to “provide services without the possibility of 

discrimination.” Brief for appellant at 30.

The City’s public perception argument attempts to subtly 

but considerably expand our holding in Henderson. While the 

City claims that the reinstatement of LeClair as a firefighter 

would undermine the public’s perception that the City provides services without discrimination, the public policy we 

recognized in Henderson was that the public should reasonably 

perceive that laws are enforced without discrimination. See, 

e.g., Henderson, 277 Neb. at 265, 762 N.W.2d at 18 (referring 

to “explicit, well-defined, and dominant public policy that laws 

should be enforced without racial or religious discrimination, 

and the public should reasonably perceive this to be so”). We 

found in Henderson that such a public policy existed by referring to Nebraska’s statute prohibiting law enforcement from 

engaging in racial profiling, see Neb. Rev. Stat. § 20-501 et 

seq. (Reissue 2007); the legislative history of that statute, in 

which supporters of the statute asserted a need to counteract 

any perception that law enforcement was engaging in racial 

profiling; and language from an opinion of Massachusetts’ 

highest court discussing the importance of the public perceiving that police officers do not abuse their power. Because the 

public policy we recognized in Henderson concerned the public’s perception of law enforcement, it is of little use to the City 

in contending that the reinstatement of LeClair, a firefighter, 

violates public policy.

Obviously, the fact that we did not recognize an explicit, 

well-defined, and dominant public policy in Henderson that 

the public should perceive that all governmental services are 

provided without discrimination would not preclude the City 

from establishing that such a public policy exists in this case. 

As we have explained, however, a court may only refuse to 

enforce an arbitration award on the grounds that it is contrary 

to public policy if that public policy is ascertained by reference 
- 946 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

to laws and legal precedents, not from general considerations 

of supposed public interests. See State v. Henderson, 277 Neb. 

240, 762 N.W.2d 1 (2009), disapproved on other grounds, 

Seldin v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d 768 

(2020). And while we do not question that it is generally in the 

public interest for the public to perceive that all governmental 

services, including those provided by firefighters, are provided 

without discrimination, the City has not directed us to any 

laws or legal precedents it believes establish an explicit, welldefined, and dominant public policy to that effect. As the party 

seeking to vacate the arbitration award, the City has the burden 

to establish the existence of any public policy that it contends 

is inconsistent with enforcement of the arbitration award. See, 

e.g., 2 Martin Domke et al., Domke on Commercial Arbitration 

§ 38:12 (3d ed. 2021) (party challenging arbitration award 

bears burden of proving grounds to vacate it). Because the City 

has not shown that this arbitration award fits within the “narrow” category of cases in which enforcement would violate 

public policy, see Henderson, 277 Neb. at 249, 762 N.W.2d at 

8, the assignment of error lacks merit.

Burden of Proof and Scope of 

Review in District Court.

In addition to its arguments that the district court erred by 

not vacating the arbitration award, the City claims that the 

district court erred in other, narrower ways. We turn to those 

arguments now, beginning with the City’s claim that the district 

court applied an incorrect burden of proof.

In the conclusion of its order finding that the arbitrator’s 

award should not be vacated, the district court stated that 

there had been “no clear showing, by the City, that one of the 

statutorily or judicially recognized bases for vacatur has been 

met.” The City contends that this language shows that the district court erroneously applied a heightened burden of proof; 

the City claims it was entitled to vacatur if it demonstrated a 

ground for vacatur by the greater weight of the evidence.
- 947 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

It is not clear to us that the district court, in fact, imposed 

a heightened burden of proof. But even assuming the district 

court concluded that it could only vacate the arbitration award 

if the City made a clear showing that a ground to vacate the 

arbitration award was present, it does not follow that the district court committed reversible error. The question of whether 

one of the bases to vacate the arbitration award was present 

is a question of law, which we review independently of the 

district court. See Garlock v. 3DS Properties, 303 Neb. 521, 

930 N.W.2d 503 (2019). We have performed that independent 

review as detailed above and determined that the City’s arguments for vacating the arbitration award lacked merit.

[8] The City also assigns that the district court erred by ruling that the arbitration award was not subject to appeal. The 

basis for this assignment of error is not clear. Although the 

district court made reference to language in the CBA providing 

that the arbitrator’s decision was to be binding and not subject 

to appeal, the district court did not treat the arbitrator’s decision as immune from any court challenge. Instead, it individually considered each of the City’s arguments for vacating the 

arbitration award. In any case, the City presents no argument 

in support of this assignment of error, so we need not address 

it further. We do not address errors that are assigned but not 

argued. See Myers v. Nebraska Equal Opp. Comm., 255 Neb. 

156, 582 N.W.2d 362 (1998).

Attorney Fees and Costs.

[9,10] Finally, the City argues that the district court erred 

by awarding the union attorney fees and court costs on the 

grounds that the City’s attempt to vacate the arbitration award 

was frivolous under § 25-824(2). A frivolous action is one in 

which a litigant 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. Seldin v. Estate 

of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020). We have 

said that the term “frivolous” connotes an improper motive 
- 948 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

or legal position so wholly without merit as to be ridiculous. 

Id. 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. Id.

On this issue, we, for the first time in this case, part company with the district court. Although we have found that 

the City’s arguments that the arbitration award should have 

been vacated lacked merit, we disagree with the district court 

that the City’s position was so lacking in merit to be deemed 

frivolous.

We disagree with the district court that the City made frivolous claims of factual and legal error that were merely “dressed 

up” as arguments that would allow the arbitration award to be 

vacated. Prior to this case, we had not explored what a party 

must show to demonstrate that an arbitrator exceeded his or 

her powers under the NUAA or whether an arbitration award 

governed by the NUAA could be vacated on the grounds 

that the arbitrator manifestly disregarded the law. Further, 

Henderson recognized that, at least in some circumstances, 

an arbitration award can be vacated because it violates public 

policy. Resolving all doubts about the City’s legal positions in 

its favor, as our standard requires, we find that the arguments 

made by the City that the arbitration award should be vacated, 

while not meritorious, were also not so unreasonable to be 

deemed frivolous.

Because we find that the City’s attempt to vacate the arbitration award was not frivolous, the district court erred in awarding attorney fees and costs pursuant to § 25-824. We reverse 

that portion of the district court’s decision.

CONCLUSION

In its briefs and at oral argument in this case, the City contended that it should be able to fire LeClair for his actions 

and asked that the arbitrator’s decision finding otherwise be 

vacated. The City, however, agreed to submit disputes like 

this to arbitration. As a result, our role in this case is a limited 
- 949 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.

Cite as 309 Neb. 918

one. While we do not minimize or condone the acts LeClair 

admitted to, much less those he was accused of, all that we 

are empowered to do is determine whether one of the narrow 

grounds on which courts may vacate arbitration awards applies. 

We find that while the City’s arguments that such grounds 

were present were not frivolous, neither were they meritorious. 

We therefore reverse the district court’s order to the extent it 

awarded the union attorney fees and costs and affirm the order 

in all other respects.

Affirmed in part, and in part reversed.

Miller-Lerman, J., not participating.