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Nebraska Court of Appeals Advance Sheets

24 Nebraska Appellate Reports

PUBLIC ASSN. OF GOVT. EMPL. v. CITY OF LINCOLN

Cite as 24 Neb. App. 703

Public Association of Government Employees, appellee, 

v. City of Lincoln, Nebraska, appellant.

___ N.W.2d ___

Filed May 16, 2017. No. A-16-007.

1. Commission of Industrial Relations: Appeal and Error. In reviewing an appeal from the Commission of Industrial Relations in a case 

involving wages and conditions of employment, an order or decision 

of the commission 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 commission acts without or in excess of its powers, (2) if the order 

was procured by fraud or is contrary to law, (3) if the facts found by 

the commission do not support the order, and (4) if the order is not 

supported by a preponderance of the competent evidence on the record 

considered as a whole.

2. Labor and Labor Relations. It is a prohibited practice for any 

employer, employee, employee organization, or collective-bargaining 

agent to refuse to negotiate in good faith with respect to mandatory 

topics of bargaining.

3. ____. Mandatory subjects of bargaining include the scale of wages, 

hours of labor, or conditions of employment.

4. ____. Management prerogatives, such as the right to hire, to maintain 

order and efficiency, to schedule work, and to control transfers and 

assignments, are not mandatory subjects of bargaining.

5. ____. A matter which is of fundamental, basic, or essential concern to an 

employee’s financial and personal concern may be considered as involving working conditions and is mandatorily bargainable even though 

there may be some minor influence on educational policy or management prerogative.

6. ____. Ordinarily, mandatory subjects of bargaining must be negotiated 

between the parties, and as such, an employer may not alter a term 

or condition of employment unless it has bargained with regard to 

the issue.

Nebraska Supreme Court Online Library

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

05/16/2017 06:14 PM CDT
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Nebraska Court of Appeals Advance Sheets

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PUBLIC ASSN. OF GOVT. EMPL. v. CITY OF LINCOLN

Cite as 24 Neb. App. 703

7. ____. No bargaining is required before altering a mandatory subject 

of bargaining if the issue is covered by the collective bargaining 

agreement.

8. ____. When parties bargain about a subject and memorialize the results 

of their negotiation in a collective bargaining agreement, they create a 

set of enforceable rules—a new code of conduct for themselves—on 

that subject.

9. Contracts. Because of the fundamental policy of freedom of contract, 

parties are generally free to agree to whatever specific rules they like, 

and in most circumstances it is beyond the competence of the courts to 

interfere with the parties’ choice.

10. Labor and Labor Relations: Contracts. Where the contract fully 

defines the parties’ rights as to what would otherwise be a mandatory 

subject of bargaining, the contract will control, and under the contract 

coverage rule, if the issue was covered by the collective bargaining agreement, then the parties have no further obligation to bargain 

the issue.

Appeal from the Commission of Industrial Relations. 

Affirmed.

John C. Hewitt, of Cline, Williams, Wright, Johnson & 

Oldfather, L.L.P., for appellant.

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

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

Moore, Chief Judge, and Inbody and Riedmann, Judges.

Riedmann, Judge.

INTRODUCTION

The City of Lincoln, Nebraska (the City), appeals from a 

decision of Nebraska’s Commission of Industrial Relations 

(CIR), which determined that when the City unilaterally 

changed employee shifts and standby staffing without bargaining with the Public Association of Government Employees 

(PAGE), it violated Nebraska’s Industrial Relations Act (IRA). 

See Neb. Rev. Stat. §§ 48-801 through 48-842 (Reissue 2010 

& Cum. Supp. 2016). Finding no error in the CIR’s decision, 

we affirm.
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Nebraska Court of Appeals Advance Sheets

24 Nebraska Appellate Reports

PUBLIC ASSN. OF GOVT. EMPL. v. CITY OF LINCOLN

Cite as 24 Neb. App. 703

BACKGROUND

PAGE is a labor union which represents various employees 

of the City, including street maintenance employees. PAGE 

and the City were operating under a collective bargaining 

agreement (CBA) that was effective from August 14, 2014, 

through August 31, 2016. Relevant to the matter at hand, the 

CBA provides:

ARTICLE 3 - MANAGEMENT RIGHTS

. . . .

Section 2. The Union acknowledges the concept of 

inherent management rights. These rights, powers, and 

authority of the City include, but are not limited to 

the following:

. . . .

C. The right to establish, allocate, schedule, assign, 

modify, change, and discontinue City operations and 

work shifts, so long as changes in days off, shifts, and 

working hours, other than in emergencies, which shall 

include but not be limited to, unplanned absences, are 

made only after the order for such change has been 

posted for seven (7) calendar days; except in instances 

which affect a single work crew or a single employee, 

the City will make a good faith attempt to deliver 

such notice.

. . . .

ARTICLE 18 - HOURS OF WORK 

AND DUTY SHIFTS

Section 1. Eight (8) consecutive hours, exclusive of 

lunch, shall constitute a day[’]s work and five (5) consecutive calendar days shall constitute a week[’]s work. 

From time to time, ten (10) hour working shifts are 

available, the option, within demand constraints, to work 

these shifts will be made available to employees working 

eight (8) hour shifts. When an employee elects to change 

his work shift to either an eight (8) or ten (10) hour work 

shift, he may not, without management consent, again 
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Nebraska Court of Appeals Advance Sheets

24 Nebraska Appellate Reports

PUBLIC ASSN. OF GOVT. EMPL. v. CITY OF LINCOLN

Cite as 24 Neb. App. 703

change his work shift from eight (8) to ten (10) hours or 

from ten (10) to eight (8) hours.

Section 2. Each employee shall be entitled to two (2) 

or three (3) days off each week which shall be consecutive, unless in conflict with shift or other assignments.

. . . .

Section 4. All employees who are regularly assigned 

to second and third shifts shall be paid an additional 

fifty-two (52) cents per hour for second shift and seventy 

(70) cents per hour for third shift. . . .

. . . .

ARTICLE 19 - OVERTIME, CALL BACK, 

AND STAND-BY PAY

. . . .

Section 5. ALTERATION OF ORDINARY SHIFT[.] 

Except for those employees that are on paid on-call or 

standby status, an employee may be called into work on 

a shift that is not his or her regular shift on a mandatory 

basis only when there is an emergency.

In January 2015, after meeting with PAGE representatives on several occasions, the City unilaterally implemented 

changes to employee work schedules, including imposing 

a mandatory standby staffing plan. Previously, employees 

worked 8-hour shifts with 2 consecutive days off or could 

elect to work 10-hour shifts with 3 consecutive days off. 

They were also able to volunteer for standby status during 

winter months, which permitted them to be called into work 

during inclement weather. Under the new standby plan, street 

maintenance workers were mandatorily placed on standby 

status where they were required to report for duty if called 

upon, and if called to duty, they were required to work on a 

7-day-per-week basis subject to 12-hour shifts or face disciplinary action.

In July 2015, PAGE filed a prohibited practice petition 

in the CIR alleging that in implementing the new standby 

plan, the City engaged in a prohibited practice in violation 
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Nebraska Court of Appeals Advance Sheets

24 Nebraska Appellate Reports

PUBLIC ASSN. OF GOVT. EMPL. v. CITY OF LINCOLN

Cite as 24 Neb. App. 703

of § 48-824(1) and (2)(e) based upon its “unilateral change 

to, and refusal to negotiate in good faith over, a mandatory 

subject of bargaining.” The City filed an answer generally 

denying the allegations and asserting that the CIR lacked 

jurisdiction over the matter, the changes implemented by the 

standby plan were not mandatory subjects of bargaining, and 

the changes were covered by the terms of the CBA.

After conducting a trial, the CIR entered an order finding 

that because the facts of the case constituted a viable prohibited practice claim, it had jurisdiction to adjudicate the matter. 

The CIR concluded that the employee work schedule changes 

the City implemented were mandatory subjects of bargaining, 

because they would “‘vitally affect’ the hours and terms and 

conditions of employment” and the past practice of voluntary 

standby duty had been in place for at least 20 years such that 

employees could reasonably expect the practice to continue. 

As such, the City had a duty to bargain in good faith with 

PAGE regarding implementation of the plan, and because it 

failed to do so, its unilateral implementation of the plan was a 

“per se violation of the [IRA] and a prohibited practice.” The 

City appeals.

ASSIGNMENTS OF ERROR

The City assigns, restated and renumbered, that the CIR 

erred in (1) finding the City’s standby plan constituted a mandatory subject of bargaining under the IRA and not a management prerogative, (2) failing to find the City’s standby plan 

was covered by the parties’ CBA and therefore not subject 

to a duty to bargain under the IRA, (3) finding the implementation of the standby plan constituted a per se violation 

of the IRA and a prohibited practice, and (4) finding it had 

jurisdiction to determine whether the City committed a prohibited practice.

STANDARD OF REVIEW

[1] In reviewing an appeal from the CIR in a case involving wages and conditions of employment, an order or decision 
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Nebraska Court of Appeals Advance Sheets

24 Nebraska Appellate Reports

PUBLIC ASSN. OF GOVT. EMPL. v. CITY OF LINCOLN

Cite as 24 Neb. App. 703

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 preponderance of 

the competent evidence on the record considered as a whole. 

Service Empl. Internat. v. Douglas Cty. Sch. Dist., 286 Neb. 

755, 839 N.W.2d 290 (2013).

ANALYSIS

The City argues that the CIR erred in finding that the 

standby plan was a mandatory subject of bargaining rather than 

a management prerogative. We disagree.

[2-5] It is a prohibited practice for any employer, employee, 

employee organization, or collective-bargaining agent to 

refuse to negotiate in good faith with respect to mandatory 

topics of bargaining. Service Empl. Internat., supra. See, also, 

§ 48-824(1). Mandatory subjects of bargaining include the 

scale of wages, hours of labor, or conditions of employment. 

Service Empl. Internat., supra. Management prerogatives, such 

as the right to hire, to maintain order and efficiency, to schedule work, and to control transfers and assignments, are not 

mandatory subjects of bargaining. Id. A matter which is of 

fundamental, basic, or essential concern to an employee’s 

financial and personal concern may be considered as involving working conditions and is mandatorily bargainable even 

though there may be some minor influence on educational 

policy or management prerogative. Id.

The City argues that the changes implemented by the 

mandatory standby plan were solely to employee work schedules and therefore fall within management prerogative. We 

agree that scheduling work is not a mandatory subject of 

bargaining; however, the changes to standby staffing were 

not simply scheduling employees to work. Rather, the mandatory plan would force employees to work 12-hour shifts 
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Nebraska Court of Appeals Advance Sheets

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PUBLIC ASSN. OF GOVT. EMPL. v. CITY OF LINCOLN

Cite as 24 Neb. App. 703

instead of 8- or 10-hour shifts and would require employees to 

forgo their weekends off, working 7 consecutive days rather 

than 4 or 5 days with 2 or 3 consecutive days off. These are 

matters of employee work hours—a mandatory subject of 

bargaining.

In addition, employees would no longer have a set schedule, but instead, they would be placed on mandatory standby 

status with little notice. As the CIR concluded, the plan implemented by the City would vitally affect the hours and terms 

and conditions of employment and was therefore a mandatory subject of bargaining. Indeed, the significant change in 

lifestyle required by the mandatory standby plan constitutes 

a matter of fundamental, basic, or essential concern to an 

employee’s personal concern and therefore may be considered as involving working conditions. The CIR’s conclusion 

is not contrary to law, and we therefore find no error in 

its decision classifying the changes as mandatory subjects 

of bargaining.

[6,7] Ordinarily, mandatory subjects of bargaining must be 

negotiated between the parties, and as such, an employer may 

not alter a term or condition of employment unless it has bargained with regard to the issue. See Service Empl. Internat. 

v. Douglas Cty. Sch. Dist., 286 Neb. 755, 839 N.W.2d 290 

(2013). However, no bargaining is required before altering a 

mandatory subject of bargaining if the issue is “‘covered by’” 

the CBA. Douglas Cty. Health Ctr. Sec. Union v. Douglas Cty., 

284 Neb. 109, 115, 817 N.W.2d 250, 255 (2012).

[8-10] Generally, when parties bargain about a subject 

and memorialize the results of their negotiation in a collective bargaining agreement, they create a set of enforceable 

rules—a new code of conduct for themselves—on that subject. Douglas Cty. Health Ctr. Sec. Union, supra. Because of 

the fundamental policy of freedom of contract, the parties are 

generally free to agree to whatever specific rules they like, 

and in most circumstances it is beyond the competence of the 

courts to interfere with the parties’ choice. See id. Therefore, 
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Nebraska Court of Appeals Advance Sheets

24 Nebraska Appellate Reports

PUBLIC ASSN. OF GOVT. EMPL. v. CITY OF LINCOLN

Cite as 24 Neb. App. 703

where the contract fully defines the parties’ rights as to what 

would otherwise be a mandatory subject of bargaining, the 

contract will control, and under the contract coverage rule, 

if the issue was covered by the collective bargaining agreement, then the parties have no further obligation to bargain 

the issue. See id.

In Douglas Cty. Health Ctr. Sec. Union, supra, the Supreme 

Court concluded that the issue of subcontracting of bargaining 

unit jobs was clearly covered by the applicable CBA, because 

the CBA specifically noted the steps that the county needed to 

follow when the contracting out or subcontracting of bargaining unit work had the effect of eliminating bargaining unit 

jobs, and the elimination of bargaining unit jobs was at issue 

in the dispute. The steps included notifying the union of the 

impending changes and providing the union with an opportunity to discuss with the county the necessity and effect on 

employees. The Supreme Court therefore concluded that the 

issue of subcontracting of bargaining unit jobs was covered 

by the CBA.

Similarly, in Dept. of Navy, Marine Corps Logistics Base 

v. FLRA, 962 F.2d 48 (D.C. Cir. 1992), cited by the Supreme 

Court in Douglas Cty. Health Ctr. Sec. Union, supra, the 

D.C. Circuit Court of Appeals held that the reassignment of 

employees and establishment of new performance standards 

were covered by the CBA. The court relied on the fact that 

the CBA contained provisions covering the implementation 

of both actions, including detailed provisions concerning the 

procedures for temporarily reassigning employees or modifying performance standards. The CBA defined when employee 

“details” would be implemented, to what kinds of positions 

an employee may be detailed, how long a detail may last, 

and what effect a detail would have on an employee’s salary 

and liability for union dues. 962 F.2d at 51. Similarly, the 

CBA established comprehensive procedures that the agency 

must follow when it modified performance criteria—including advance notice to employees, an opportunity for employee 
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Nebraska Court of Appeals Advance Sheets

24 Nebraska Appellate Reports

PUBLIC ASSN. OF GOVT. EMPL. v. CITY OF LINCOLN

Cite as 24 Neb. App. 703

participation in the creation of performance standards, and an 

overarching requirement that the standards implemented be 

fair and reasonable. Accordingly, the appellate court held that 

under any reasonable definition of the term “covered by,” the 

impact and implementation matters related to employee details 

and performance criteria were covered by the CBA.

In the present case, the main change at issue is the modification of the procedure for standby staffing, which in turn 

alters employees’ work hours, days, and overtime status. The 

parties’ CBA refers to the hours and shifts employees work, 

contemplating three separate work shifts and 8- or 10-hour 

shifts. Thus, under article 3 of the CBA, the City retained the 

right to change employee work shifts, meaning, for example, 

it could move employees from first shift to second shift, so 

long as 7 days’ notice was provided. The CBA is silent on the 

issue of voluntary standby staffing (except as to the issue of 

pay) and says nothing about the steps the City would need to 

follow to make standby staffing mandatory—thereby imposing mandatory overtime on employees and altering their work 

hours and days off. Article 19 of the CBA contemplates mandatorily calling employees into work on a shift that is not a 

regular shift but applies only in the case of an emergency, 

which does not affect the changes at issue here. We therefore 

cannot find that the changes implemented by the City are 

covered by the CBA. As a result, the parties were required to 

negotiate prior to implementing any changes to the standby 

staffing procedures.

Because we conclude that the changes the City implemented were not covered by the CBA, we also reject PAGE’s 

argument that the issues became moot with the expiration of 

the CBA. We additionally find no merit to the City’s argument that the CIR lacked jurisdiction over the matter because, 

instead of a prohibited practice claim, the matter was actually a breach of contract claim over which the CIR does not 

have jurisdiction. See Lamb v. Fraternal Order of Police 

Lodge No. 36, 293 Neb. 138, 876 N.W.2d 388 (2016) (CIR 
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PUBLIC ASSN. OF GOVT. EMPL. v. CITY OF LINCOLN

Cite as 24 Neb. App. 703

has no jurisdiction over breach of contract claims, but for 

claims involving determination of prohibited practice under 

IRA, jurisdiction lies with CIR). Because we determined that 

the claim was, in fact, a prohibited practice, we conclude 

that the CIR did not err in exercising its jurisdiction over 

PAGE’s claim.

CONCLUSION

We conclude that the City’s implementation of changes to 

standby staffing, employee work hours, and days off was a 

mandatory subject of bargaining that was not covered by the 

CBA. Therefore, the City had a duty to negotiate the changes 

with PAGE prior to implementation. Because the City failed 

to do so, it committed a prohibited practice under the IRA. 

Accordingly, we affirm the decision of the CIR.

Affirmed.