IBEW Local 763 v. Omaha Pub. Power Dist.

I nternatIonal Brotherhood of electrIcal Workers
local 763 and I nternatIonal Brotherhood of
electrIcal Workers local 1483, appellants ,
v. omaha puBlIc poWer dIstrIct, appellee .
791 N.W.2d 310
Filed December 3, 2010. 	No. S-10-025.
1. Commission of Industrial Relations: Appeal and Error. Any order or decision
of the Commission of Industrial Relations 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. Commission of Industrial Relations: Evidence: Appeal and Error. In an
appeal from an order by the Commission of Industrial Relations regarding prohib-
ited practices, an appellate court will affirm a factual finding of the commission
if, considering the whole record, a trier of fact could reasonably conclude that the
finding is supported by a preponderance of the competent evidence.
3. Pleadings: Appeal and Error. An appellate court is obligated to dispose of cases
on the basis of the theory presented by the pleadings.
4. Labor and Labor Relations: Public Officers and Employees. The purpose of
Neb. Rev. Stat. § 48-824 (Reissue 2004) is to provide public sector employees
with the protection from unfair labor practices that private sector employees
enjoy under the National Labor Relations Act, by making refusals to negotiate in
good faith regarding mandatory bargaining topics a prohibited practice.
5. Commission of Industrial Relations. An employer may lawfully implement
changes in terms and conditions of employment which are mandatory topics of
bargaining only when three conditions have been met: (1) The parties have bar-
gained to impasse, (2) the terms and conditions implemented were contained in
a final offer, and (3) the implementation occurred before a petition regarding the
year in dispute is filed with the Commission of Industrial Relations.
Appeal 	from 	the 	Commission 	of 	Industrial 	Relations.
Affirmed.
Robert E. O’Connor, Jr., for appellants.
Robert F. Rossiter, Jr., and Cristin McGarry Berkhausen, of
Fraser Stryker, P.C., L.L.O., for appellee.
heavIcan, c.J., WrIght, connolly, gerrard, mccormack,
and mIller-lerman, JJ.
IBEW LOCAL 763 v. OMAhA PuB. POWER DIST. 	889
Cite as 280 Neb. 889
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

mccormack, J.
NATuRE OF CASE
International Brotherhood of Electrical Workers Locals 763
and 1483 (collectively IBEW) filed a prohibited practices com-
plaint against Omaha Public Power District (OPPD) on July 7,
2009. The complaint alleged that OPPD’s implementation of its
“Tobacco-Free Worksite” policy (the Policy) to each existing
IBEW collective bargaining agreement (CBA) was a “prohibited
practice” under Neb. Rev. Stat. § 48-824(1) and (2)(a), (b), and
(f) (Reissue 2004). The issue was tried before the Commission
of Industrial Relations (CIR) upon stipulated facts. The parties
also stipulated at trial that they were at impasse regarding the
negotiation of this issue. The CIR found that OPPD did not
commit a prohibited practice in implementing the Policy to the
existing agreements. IBEW now appeals.
BACkGROuND
The organizations that make up IBEW are labor organiza-
tions as defined in Neb. Rev. Stat. § 48-801(6) (Cum. Supp.
2010). OPPD is a political subdivision of the State of Nebraska
and an employer as defined in § 48-801(4). IBEW repre-
sents two different bargaining units of employees employed by
OPPD; each has a separate CBA with OPPD.
The term of both CBA’s is June 1, 2007, to May 31, 2010.
One of the CBA’s provides:
Other rules and practices, pertaining to working condi-
tions, etc., which obtained on the effective date of the
Agreement and which are not in conflict with any of the
other provisions of the Agreement, shall remain in effect
until revised or discontinued by mutual consent of the
Company and the union or the employees concerned.
In February 2008, the Governor signed the Nebraska Clean
Indoor Air Act (the Act), which was codified under Neb. Rev.
Stat. §§ 71-5716 to 71-5734 (Reissue 2009). The Act prohibits
smoking in enclosed indoor workspaces.1 under § 71-5727,
the Act defines smoking as the lighting of any cigarette, cigar,
pipe, or other smoking material or the possession of any
1 § 71-5717.
890 	280 NEBRASkA REPORTS

lighted cigarette, cigar, pipe, or other smoking material, regard-
less of its composition. As a result of the Act’s implementation,
on May 28, 2008, OPPD notified its three unions of its plan
to implement a new 2009 policy concerning a tobacco-free
worksite. The parties agreed the implementation of the Act was
a mandatory subject of collective bargaining, and in February
2009, OPPD opened up negotiations regarding the new policy.
The International Association of Machinists and Aerospace
Workers Local Lodge 31, which is the other union that rep-
resents OPPD employees, was a party to the negotiations at
issue, but declined to join in the proceeding below.
On February 26, 2009, the parties held the first of four
negotiation meetings. OPPD began negotiations by presenting
the unions with a draft memorandum of understanding. On
March 12, the parties met a second time, and the unions pre-
sented a joint union proposal, which contained several changes,
including an extended implementation date, designated smok-
ing areas, an exception for smokeless tobacco, and a provision
regarding the use of cessation medication and sick leave for the
purposes of quitting smoking. The parties held a third meet-
ing on March 19, where OPPD presented its counterproposal.
The counterproposal reflected OPPD’s concessions regarding
the use of tobacco during “‘unpaid time’” and smoking cessa-
tion medication and use of sick leave for the purpose of quit-
ting smoking.
On April 13, 2009, the parties met for a fourth and final time
and OPPD presented its final proposal. OPPD sent its last, best,
and final offer as a memorandum of understanding to all of the
unions on April 17. The letter instructed the unions to notify
OPPD of their position by April 30. IBEW declined to accept
the final offer. OPPD thereafter notified all three unions that
it would unilaterally implement the Policy on June 1, and the
Policy was implemented on that date.
The Policy effectively prohibits the use of tobacco products
within all company-owned and/or company-occupied build-
ings and vehicles, including but not limited to all facilities,
vehicles, parking lots, parking garages, and private and public
land where OPPD is performing work, as well as all sidewalks
which OPPD maintains. The Policy defines tobacco products as
IBEW LOCAL 763 v. OMAhA PuB. POWER DIST. 	891
Cite as 280 Neb. 889

“all products used in the form of cigarettes, pipes, cigars and/
or any smokeless form.” The Policy also prohibits leaving the
worksite to use tobacco products and using tobacco products
while walking to or from an employee’s parked car on OPPD
property. The Policy states that if OPPD has reasonable cause
to believe an employee is in violation of these prohibitions,
OPPD will take corrective action which could include disci-
plinary action.
IBEW filed a prohibited practices complaint against OPPD.
The complaint alleged that OPPD’s implementation of the
Policy to the existing CBA was a prohibited practice under
§ 48-824(1) and (2)(a), (b), and (f). The issue was tried before
the CIR upon stipulated facts. The parties also stipulated at
trial that they were at impasse regarding the negotiation of
this issue. The CIR determined that the implementation of the
Policy following good faith bargaining to impasse did not con-
stitute a violation of § 48-824, and dismissed IBEW’s claim.
IBEW now appeals.
ASSIGNMENTS OF ERROR
IBEW assigns that the CIR erred in (1) failing to consider
the existence of a valid, binding CBA, (2) relying upon inap-
plicable case law regarding impasse at contract expiration, and
(3) allowing a public employer to unilaterally modify a CBA
during its term after bargaining to impasse on a mandatory
subject of bargaining.
STANDARD OF REvIEW
[1] under Neb. Rev. Stat. § 48-825(4) (Reissue 2004), 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 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
2 See Central City Ed. Assn. v. Merrick Cty. Sch. Dist., ante p. 27, 783
N.W.2d 600 (2010).
892 	280 NEBRASkA REPORTS

[2] In an appeal from an order by the CIR regarding prohib-
ited practices, an appellate court will affirm a factual finding of
the CIR if, considering the whole record, a trier of fact could
reasonably conclude that the finding is supported by a prepon-
derance of the competent evidence.3
ANALySIS
[3] Both IBEW and OPPD elected to engage in the collec-
tive bargaining process on the present issue. While a unilateral
change in a term or condition of employment contained in a
CBA may be a breach of contract,4 the CIR lacks jurisdiction
to hear breach of contract claims.5 IBEW chose to bring this
action before the CIR and alleged only that OPPD committed
a prohibited practice under Nebraska’s Industrial Relations Act
(IRA). An appellate court is obligated to dispose of cases on
the basis of the theory presented by the pleadings.6 Therefore,
we will address only whether the implementation of the Policy
in this instance was a prohibited practice under § 48-824.
The parties stipulated to the fact that OPPD is lawfully enti-
tled to enact, without negotiation, such provisions of the Policy
as are consistent with the Act. The Policy, however, exceeds
the statutory requirements of the Act. Specifically, the Policy
applies to smokeless tobacco and prohibits the use of tobacco
products anytime an employee is on company time, is using
company property, or is in company facilities. The Act did not
require these additional changes to the CBA.
At issue, then, is whether a public employer can modify
conditions or terms of employment during the term of a valid
CBA after negotiating to impasse in good faith on a manda-
tory subject of bargaining, and then unilaterally implementing
a change.
IBEW’s complaint alleged a violation of § 48-824(1) and
(2)(a), (b), and (f) when OPPD unilaterally implemented the
3 South Sioux City Ed. Assn. v. Dakota Cty. Sch. Dist., 278 Neb. 572, 772
N.W.2d 564 (2009).
4 Id.
5 See id.
6 Rush v. Wilder, 263 Neb. 910, 644 N.W.2d 151 (2002).
IBEW LOCAL 763 v. OMAhA PuB. POWER DIST. 	893
Cite as 280 Neb. 889

Policy after reaching impasse in negotiations with IBEW. On
appeal, IBEW relies on general principles of contract law and
argues that it is impermissible to “insist to impasse, and then
implement, a change during the term of the [CBA].”7 OPPD
argues that it did not commit a prohibited practice, because it
did not refuse to bargain in good faith and because the parties
did in fact reach impasse prior to implementation of the Policy.
We agree and affirm the decision of the CIR.
[4] unilateral implementation of final offers has consistently
been discussed in relation to the duty to negotiate in good
faith.8 This is an established tenet of labor law and limits the
scope of our analysis to whether OPPD’s unilateral implemen-
tation of the Policy violates its duty to bargain in good faith.
Section 48-824(1) states that it is a prohibited practice for an
employer to refuse to negotiate in good faith with respect to
mandatory topics of bargaining. The purpose of § 48-824 is
to provide public sector employees with the protection from
unfair labor practices that private sector employees enjoy under
the National Labor Relations Act (NLRA), by making refusals
to negotiate in good faith regarding mandatory bargaining top-
ics a prohibited practice.9
[5] Prior to deciding the present case, the CIR had not rec-
ognized an employer’s right to unilaterally implement its final
offer upon reaching impasse during the pendency of a CBA.
however, the CIR had previously determined that when negoti-
ating upon expiration of a CBA or at its inception, an employer
may unilaterally implement a final offer if it does so after
impasse and before any proceeding has been initiated before
7 Brief for appellants at 21.
8 See Labor Board v. Katz, 369 u.S. 736, 82 S. Ct. 1107, 8 L. Ed. 2d 230
(1962). See, also, Litton Financial Printing Div. v. NLRB, 501 u.S. 190,
111 S. Ct. 2215, 115 L. Ed. 2d 177 (1991); Taft Broadcasting Co., 163
N.L.R.B. 475 (1967), review denied sub nom. American Fed. of Television
& Radio Artists v. NLRB, 395 F.2d 622 (D.C. Cir. 1968).
9 See Introducer’s Statement of Intent, Committee Statement, L.B. 382,
Committee on Business and Labor, 94th Leg., 1st Sess. (Feb. 6, 1995).
894 	280 NEBRASkA REPORTS

the CIR.10 In FOP Lodge 41 v. County of Scotts Bluff,11 the CIR
determined that an employer may lawfully implement changes
in terms and conditions of employment which are mandatory
topics of bargaining only when three conditions have been met:
(1) The parties have bargained to impasse, (2) the terms and
conditions implemented were contained in a final offer, and
(3) the implementation occurred before a petition regarding
the year in dispute is filed with the CIR. If any of these three
conditions are not met, then the employer’s unilateral imple-
mentation of changes in mandatory bargaining topics is a per
se violation of the duty to bargain in good faith.12 The CIR here
appropriately extended this rule to include the implementations
of final offers during the term of a CBA.
We have previously noted that decisions under the NLRA
are helpful in interpreting the IRA, but are not binding.13 under
the NLRA, the general rule is that an employer has the right
upon impasse to implement its final offer with respect to a
mandatory subject of bargaining.14 This has been applied to
negotiations taking place during the term of a CBA.15
Section 	8(a)(5) 	of 	the 	NLRA, 	codified 	at 	29 	u.S.C.
§ 158(a)(5) (2006), requires that an employer bargain with
the union before effecting changes in terms and conditions of
employment.16 But if the parties reach good faith impasse in
negotiations, the employer generally does not violate § 8(a)(5)
10 See, Lincoln Co. Sheriff ’s Emp. Assn. v. Co. of Lincoln, 216 Neb. 274,
343 N.W.2d 735 (1984), affirming 5 C.I.R. 441 (1982); General Drivers &
Helpers Union, Local No. 554 v. Saunders County, Nebraska, 6 C.I.R. 313
(1982).
11 FOP Lodge 41 v. County of Scotts Bluff, 13 C.I.R. 270 (2000).
12 Id.
13 Crete Ed. Assn. v. Saline Cty. Sch. Dist. No. 76-0002, 265 Neb. 8, 654
N.W.2d 166 (2002).
14 Colorado-Ute Elec. Ass’n, Inc. v. N.L.R.B., 939 F.2d 1392 (10th Cir.
1991).
15 See id.
16 Id., citing Taft Broadcasting Co., supra note 8. See 29 u.S.C.
§ 158(a)(5).
IBEW LOCAL 763 v. OMAhA PuB. POWER DIST. 	895
Cite as 280 Neb. 889

by thereafter implementing changes consistent with those pro-
posed to the union.17
“‘That the employer is free to implement changes after
reaching good-faith impasse is another way of express-
ing the axiom that the employer’s duty to bargain over
proposed changes does not imply a duty to agree to the
union’s counterproposals or to make a concession. . . .
The employer’s duty to bargain does not give the union
a right to veto the proposed changes by withholding con-
sent. If the parties have bargained to good-faith impasse
and the union has been unable to secure concessions or
agreement to its proposals, then the employer may pro-
ceed to implement the changes it proposed to the union
in negotiations.’”18
Section 8(d) of the NLRA imposes a mutual obligation on
the employer and the representative of employees to bargain
in good faith.19 Nebraska’s IRA does not contain a provision
similar to § 8(d) of the NLRA. however, as previously stated,
under § 48-824(1), it is a prohibited practice for a party to
refuse to negotiate in good faith. Therefore, the duty to negoti-
ate in good faith is mandated under both statutory schemes.
The IRA’s good faith bargaining requirements provide a stat-
utory check which supports the findings of the CIR in this case.
The duty to negotiate in good faith on mandatory topics of
bargaining is to be enforced by the application of § 48-824(1).
Good faith bargaining requirements ensure that an employer
will not simply “go through the motions” of discussing man-
datory topics of bargaining and then take unilateral action by
implementing its own terms. This requirement, coupled with
the requirement that the parties reach a genuine impasse on
the issue, ensures that an employer will not achieve its terms
in bad faith.
NLRA cases which have recognized an employer’s right to
unilaterally implement changes to conditions of employment at
17 Id.
18 Colorado-Ute Elec. Ass’n, Inc. v. N.L.R.B., supra note 14, 939 F.2d at
1404 (emphasis omitted).
19 29 u.S.C. § 158(d).
896 	280 NEBRASkA REPORTS

impasse have reasoned that this right is counterbalanced by a
union’s right to strike and the statutory duty to bargain in good
faith under § 8(d). Employees of a Nebraska public power
district are not permitted to strike under the IRA.20 however,
employees have been provided other protections in lieu of the
right to strike. Namely, employees are entitled to initiate pro-
hibited practices proceedings before the CIR. Further, the CIR
has jurisdiction over certain “industrial disputes involving gov-
ernmental service.”21 As used in the IRA, the term “industrial
dispute” includes “any controversy concerning terms, tenure,
or conditions of employment, or concerning the association or
representation of persons in negotiating, fixing, maintaining,
changing, or seeking to arrange terms or conditions of employ-
ment, or refusal to discuss terms or conditions of employ-
ment.”22 When a party brings an industrial dispute, the CIR
has the power to establish or alter conditions of employment.23
As stated above, an employer may not unilaterally implement
its final offer after a petition has been filed with the CIR. The
union, therefore, may bring an industrial dispute when the par-
ties have reached impasse on a mandatory subject of bargain-
ing. This gives the union the power to ask the CIR to establish
appropriate working conditions under the circumstances and
effectively bars the employer from unilaterally implementing
its final offer. These protections adequately counterbalance
the employer’s right to implement its final offer when impasse
is reached.
Both parties agree that the Policy at issue is a mandatory
topic of bargaining. The parties have stipulated that OPPD
bargained in good faith and that negotiations reached a genuine
impasse. The changes implemented by OPPD were contained
in preimpasse proposals, and the implementation occurred
before any petition was filed with the CIR. The facts of this
case support the findings of the CIR and are not contrary to
20 § 48-801 and Neb. Rev. Stat. § 48-802 (Reissue 2004).
21 Neb. Rev. Stat. § 48-810 (Reissue 2004).
22 § 48-801(7).
23 Neb. Rev. Stat. § 48-818 (Reissue 2004).
IBEW LOCAL 763 v. OMAhA PuB. POWER DIST. 	897
Cite as 280 Neb. 889

law. Recognizing an employer’s right to implement changes
unilaterally under the circumstances described above does
not adversely affect the policy behind the IRA. We there-
fore affirm.
CONCLuSION
For 	the 	reasons 	stated 	above, 	we 	affirm 	the 	order 	of
the CIR.
affIrmed.
stephan, J., not participating.
I n re trust of leo a. hrnIcek ,
also knoWn as l.a. hrnIcek , m.d., deceased.
adrIenne h. BrIetzke , appellant, v. fIrst
natIonal Bank north platte , appellee .
792 N.W.2d 143
Filed December 3, 2010. 	No. S-10-192.
1. Decedents’ Estates: Appeal and Error. Appeals of matters arising under the
Nebraska Probate Code are reviewed for error on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, the inquiry is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
3. Decedents’ Estates: Appeal and Error. In reviewing the judgment awarded by
the probate court in a law action, an appellate court does not reweigh evidence,
but considers the evidence in the light most favorable to the successful party and
resolves evidentiary conflicts in favor of the successful party, who is entitled to
every reasonable inference deducible from the evidence.
4. Contracts: Equity. The right of retainer lies in equity.
5. Limitations of Actions: Judgments. It is axiomatic that a court’s order is not
subject to a statute of limitations defense.
Appeal from the County Court for Morrill County: randIn
roland, Judge. Affirmed.
Paul E. hofmeister and Joseph A. kishiyama, of Chaloupka,
holyoke, hofmeister, Snyder & Chaloupka, P.C., L.L.O., for
appellant.
John k. Sorensen, of Sorensen, Mickey & hahn, P.C., for
appellee.
898 	280 NEBRASkA REPORTS