Fraternal Order of Police Lodge #88 v. State

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
FRATERNAL ORDER OF POLICE LODGE #88 v. STATE
Cite as 316 Neb. 28
Fraternal Order of Police Lodge #88, appellee,
v. State of Nebraska, appellant.
___ N.W.3d ___
Filed March 1, 2024. 	No. S-22-748.
1. Commission of Industrial Relations: Appeal and Error. Any order
or decision of the Commission of Industrial Relations may be modi-
fied, 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. Judgments: Jurisdiction. A jurisdictional issue that does not involve a
factual dispute presents a question of law.
3. Judgments: Questions of Law: Claim Preclusion: Issue Preclusion:
Appeal and Error. The applicability of claim and issue preclusion is a
question of law. On a question of law, an appellate court reaches a con-
clusion independent of the court below.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
5. Courts: Appeal and Error. An appellant’s designation of the wrong
court in the notice of appeal is not necessarily fatal.
6. Judgments: Issue Preclusion. Issue preclusion applies where (1) an
identical issue was decided in a prior action, (2) the prior action resulted
in a final judgment on the merits, (3) the party against whom the doc-
trine is to be applied was a party or was in privity with a party to the
prior action, and (4) there was an opportunity to fully and fairly litigate
the issue in the prior action.
Appeal 	from 	the 	Commission 	of 	Industrial 	Relations.
Reversed and remanded with directions.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:36 AM CDT

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
FRATERNAL ORDER OF POLICE LODGE #88 v. STATE
Cite as 316 Neb. 28
Mark A. Fahleson and Tara L. Paulson, of Rembolt Ludtke,
L.L.P., for appellant.
Milissa D. Johnson-Wiles and Gary L. Young, of Keating,
O’Gara, Nedved & Peter, P.C., L.L.O., for appellee.
Miller-Lerman, 	Cassel, 	Stacy, 	Funke, 	Papik, 	and
Freudenberg, JJ.
Funke, J.
INTRODUCTION
The Fraternal Order of Police Lodge #88 (FOP 88) is the
bargaining representative of the protective service bargain-
ing unit (PSBU). In that capacity, FOP 88 petitioned the
Commission of Industrial Relations (CIR) to clarify that the
PSBU includes corrections unit case managers or to amend
the PSBU to include them. The CIR subsequently issued an
order clarifying that pursuant to its 2018 order certifying FOP
88 as the PSBU’s bargaining representative, the PSBU has
included and will continue to include all employees with the
position title of corrections unit case manager. The State of
Nebraska appeals that order of clarification. Because the CIR
erred in giving preclusive effect to the 2018 order, we reverse
the CIR’s order of clarification and remand the matter to the
CIR to again rule on whether the PSBU includes corrections
unit case managers based on the existing record and to pro-
vide an explanation that forms the basis for its ruling.
BACKGROUND
The State Employees Collective Bargaining Act (Bargaining
Act) 1 created 12 bargaining units for all state agencies except
the University of Nebraska, Nebraska state colleges, and
other constitutional offices. 2 One unit is the “[p]rotective
1 Neb. Rev. Stat. §§ 81-1369 to 81-1388 (Reissue 2014).
2 § 81-1373(1).

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FRATERNAL ORDER OF POLICE LODGE #88 v. STATE
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[s]ervice” unit, which is composed of “institutional security
personnel, including correctional officers, building security
guards, and similar classes.” 3 Another unit is composed of
employees who are supervisors. 4 Generally, supervisors are
not to be included in a bargaining unit with other employees
who are not supervisors. 5 “Supervisor” is defined as
any public employee having authority, in the interest of
the public employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or discipline
other public employees, or responsibility to direct them,
to adjust their grievances, or effectively to recommend
such action, if in connection with such action the exercise
of such authority is not of a merely routine or clerical
nature but requires the use of independent judgment. 6
Immediately prior to 2018, the PSBU was represented by
the Nebraska Association of Public Employees (NAPE) Local
61. In that capacity, NAPE Local 61 negotiated labor contracts
with the State covering the periods from July 1, 2015, through
June 30, 2017, and from July 1, 2017, through June 30, 2019.
Both those contracts generally provided that they “pertain[ed]
to bargaining unit employees who occup[ied] the position
class titles set forth specifically in Appendix A.” Appendix A
listed the title of corrections unit case manager along with the
job code P66442 as part of the PSBU. However, both contracts
also excluded employees who “occup[ied] positions identified
as supervisory . . . either as agreed upon by the [e]mployer
and the [u]nion or as identified at any time by the [CIR] or
court of proper jurisdiction.”
3 § 81-1373(1)(f).
4 § 81-1373(1)(l).
5 Hamilton Cty. EMS Assn. v. Hamilton Cty., 291 Neb. 495, 866 N.W.2d 523
(2015).
6 Neb. Rev. Stat. § 48-801(14) (Reissue 2021).

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316 Nebraska Reports
FRATERNAL ORDER OF POLICE LODGE #88 v. STATE
Cite as 316 Neb. 28
2018 Certification Proceeding
In May 2018, FOP 88 filed a petition with the CIR seeking
to decertify NAPE Local 61 as the PSBU’s bargaining repre-
sentative and have itself certified instead. That petition, which
named NAPE Local 61 and the State as respondents, alleged
that the bargaining unit “shall include the following job clas-
sifications currently employed by the State of Nebraska which
are occupationally and functionally related and who have a
community of interest with one another due to the nature of
their work.” Corrections unit case manager was among the
job classifications listed. However, no job code was given
for that classification or for any other job classification. The
petition also stated that “some of these classes may currently
be vacant.”
In its answer, the State denied those allegations on the basis
that it was without knowledge or information sufficient to
form a belief as to the truth of the allegations.
Subsequently, in July 2018, the CIR issued an order certify-
ing FOP 88 as the exclusive collective bargaining agent for
the PSBU. The CIR’s order stated that corrections unit case
manager was one of the “positions” included in the PSBU.
The order, like the petition, did not specify job codes for
any position.
FOP 88 and the State then began negotiations. However,
according to subsequent testimony, the State refused to bargain
as to corrections unit case managers in the belief that correc-
tions unit case managers were supervisors under § 48-801(14)
and, thus, excluded from the PSBU under the Industrial
Relations Act. 7 The labor contract for 2019-21 is not part of
the record on appeal. However, in the 2021-23 contract, cor-
rections unit case managers are not listed in appendix A as part
of the PSBU.
7 Neb. Rev. Stat. §§ 48-801 to 48-839 (Reissue 2021).

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316 Nebraska Reports
FRATERNAL ORDER OF POLICE LODGE #88 v. STATE
Cite as 316 Neb. 28
2021 Petition to Clarify or
Amend Bargaining Unit
On May 28, 2021, FOP 88 petitioned the CIR to clarify or
amend the PSBU to include corrections unit case managers.
The petition alleged that the PSBU was the most appropriate
bargaining unit for corrections unit case managers because they
were institutional security personnel under the Bargaining Act.
The petition also alleged that the work of corrections unit case
managers was more closely aligned with the work of employ-
ees in the PSBU than with the work of employees in any other
unit and that corrections unit case managers were occupation-
ally and functionally related to and shared a community of
interest with employees in the PSBU. In addition, the petition
alleged that corrections unit case managers were not supervi-
sors under § 48-801(14) and, thus, were not excluded from
bargaining under the Industrial Relations Act.
In its answer, the State denied the aforementioned allega-
tions and asserted affirmative defenses that are not relevant to
our decision on appeal.
Evidence Presented at Hearing
The CIR held a hearing at which FOP 88 presented testi-
mony that when the union sought to decertify NAPE Local
61, it contacted the State’s “[c]hief negotiator” for a list of all
employees in the bargaining unit. According to the testimony,
FOP 88 was informed that at “some point in time,” the State
took corrections unit case managers out of the PSBU and
“put them into the supervisory unit,” and that “NAPE never
objected.”
The State, in turn, presented testimony that the job code in
the class specification for corrections unit case managers begins
with a “V,” not a “P,” unlike the job codes given in prior labor
contracts. The State’s witness also testified that “V” codes des-
ignated “supervisory positions” and that all employees whom
the Department of Correctional Services could identify from

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FRATERNAL ORDER OF POLICE LODGE #88 v. STATE
Cite as 316 Neb. 28
its records as having held the position of corrections unit case
manager had a “V” job code.
There was also other evidence and testimony regarding cor-
rections unit case managers’ role within the Department of
Correctional Services. That evidence is summarized below as
it relates to our analysis of the parties’ arguments on appeal.
CIR Order Clarifying Corrections Unit
Case Managers Included in PSBU
Following the hearing, the CIR issued an order clarifying
that the PSBU “has included, and will continue to include[,]
all employees with the position title of ‘Corrections Unit Case
Manager[]’ pursuant to the [2018] Certification Order.”
The CIR began by reviewing the foregoing information about
the 2018 proceeding, its prior order, the State’s subsequent
refusal to bargain as to corrections unit case managers, and the
“P” and “V” job codes that the State claimed were associated
with the position title. The CIR then stated as follows:
In 2018, the issue was before us whether Corrections
Unit Case Managers were part of the bargaining unit
and we made a specific finding that they were . . . . At
the trial of the present matter, we learned the State was
quietly using two different classifications of Corrections
Unit Case Managers before the FOP filed the petition
seeking to decertify NAPE as the bargaining representa-
tive for the PSBU, the State was doing so during those
proceedings, and has continued doing so since we entered
the Certification Order finding that [FOP 88] should be
certified as the bargaining representative for the PSBU
and finding that the PSBU included Corrections Unit
Case Managers. Yet, during those proceedings it said
nothing about its position that some Corrections Unit
Case Managers are not Corrections Unit Case Managers.
We further note that it did not appeal the finding that
[the] PSBU included Corrections Unit Case Managers.
Rather, it appears it simply ignored the order of the

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FRATERNAL ORDER OF POLICE LODGE #88 v. STATE
Cite as 316 Neb. 28
Commission and continued taking the position that the
employees who are Corrections Unit Case Managers are
not Corrections Unit Case Managers for purposes of the
2018 order. For purposes of the action before us, we
do not recognize the State’s unilateral differentiation of
Corrections Unit Case Managers.
The State has not offered any evidence to explain the
alleged differences in duties and responsibilities between
the empty position of “P66442 Case Manager” and the
“V66442 Case Manager” position that is actually used.
There is no reason to believe that there is any difference
between the Corrections Unit Case Managers referred to
in the Certification Order and previous labor contracts,
and those referred to in [the class specification for cor-
rections unit case managers]. Nor has the State offered
any evidence to show that the Certification Order was
specifically referring to “P66442 Case Managers.” The
language of the Certification Order itself does not dis-
tinguish between different classifications of Corrections
Unit Case Managers, and it makes no mention of clas-
sification codes. It explicitly states that “Corrections
Unit Case Managers” are included in the PSBU. . . .
Thus, there is no reason to think that this order was
limited to one classification of Corrections Unit Case
Managers at the exclusion of any others. Specifically,
there is no reason to think the Certification Order was
referring to an empty and never-used position code, at
the exclusion of the position that employees actually fill.
All Corrections Unit Case Managers, whether classified
now by the [State] as within the “P” code or “V” code[,]
are Corrections Unit Case Managers and are included in
the PSBU.
The CIR acknowledged the State’s argument that correc-
tions unit case managers were supervisors under § 48-801(14)
and, as such, excluded from the PSBU under the Industrial
Relations Act. However, the CIR concluded by summarily

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FRATERNAL ORDER OF POLICE LODGE #88 v. STATE
Cite as 316 Neb. 28
rejecting that argument, stating only that the State failed to
prove that corrections unit case managers exercised any of the
statutorily enumerated duties of supervisors with the requisite
degree of independent judgment.
The State appeals. We moved the matter to our docket upon
the State’s motion to bypass review by the Nebraska Court
of Appeals. 8
ASSIGNMENTS OF ERROR
The State assigns, restated and reordered, that the CIR erred
in (1) determining that corrections unit case managers were not
supervisors under § 48-801(14); (2) allowing corrections unit
case managers to be placed in the same bargaining unit as sub-
ordinates, in violation of § 48-816(3); (3) impliedly construing
the term “institutional security personnel” in § 81-1373(1)(f)
to include corrections unit case managers; (4) impliedly deter-
mining that corrections unit case managers were occupation-
ally and functionally related to and shared a community of
interest with other employees in the PSBU; and (5) determin-
ing that corrections unit case managers with the “V” job code
were at issue and included in the 2018 certification order and
thus cannot be removed from the PSBU.
STANDARD OF REVIEW
[1] Any order or decision of the CIR may be modified,
reversed, or set aside by an appellate court on one or more of
the following grounds and no other: (1) if the CIR acts without
or in excess of its powers, (2) if the order was procured by
fraud or is contrary to law, (3) if the facts found by the CIR
do not support the order, and (4) if the order is not supported
by a preponderance of the competent evidence on the record
considered as a whole. 9
8 See Neb. Rev. Stat. § 24-1106 (Cum. Supp. 2022).
9 Fraternal Order of Police v. City of York, 309 Neb. 359, 960 N.W.2d 315
(2021).

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FRATERNAL ORDER OF POLICE LODGE #88 v. STATE
Cite as 316 Neb. 28
[2-3] A jurisdictional issue that does not involve a factual
dispute presents a question of law. 10 The applicability of claim
and issue preclusion is a question of law. 11 On a question of
law, an appellate court reaches a conclusion independent of the
court below. 12
ANALYSIS
This Court Has Jurisdiction
Over State’s Appeal
[4] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it
has jurisdiction over the matter before it. 13 Following oral
arguments, FOP 88 moved to dismiss the State’s appeal on
the ground that we lack subject matter jurisdiction because
the “Notice of Intention to Appeal” the State filed with the
CIR indicated an intention to appeal to the Court of Appeals,
and not this court, as FOP 88 claims is required under the
Bargaining Act. The State opposes that motion, arguing that it
properly filed the notice with the Court of Appeals under the
Industrial Relations Act.
Both the Industrial Relations Act and the Bargaining Act
provide for appeals of CIR decisions. However, § 48-825(3)
of the Industrial Relations Act provides for appeals of “any
decision or order of the [CIR]” to the Court of Appeals. 14
Section 81-1387(3) of the Bargaining Act once similarly
authorized 	appeals 	to 	the 	Court 	of Appeals. 15 However,
10 In re Hessler Living Trust, 313 Neb. 607, 985 N.W.2d 589 (2023).
11 Boone River, LLC v. Miles, 314 Neb. 889, 994 N.W.2d 35 (2023), modified
on denial of rehearing 315 Neb. 413, 996 N.W.2d 629.
12 Id.
13 McPherson v. Walgreens Boot Alliance, 314 Neb. 875, 993 N.W.2d 679
(2023).
14 See, also, § 48-812 (providing for appeals to Court of Appeals).
15 See 2011 Neb. Laws, L.B. 397, § 32 (striking reference to Court of
Appeals and replacing it with reference to Supreme Court).

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FRATERNAL ORDER OF POLICE LODGE #88 v. STATE
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§ 81-1387(3) was amended in 2011 to provide for “any deci-
sion or order of the [CIR]” to be appealed to this court. 16
The present case involves a proceeding to clarify or amend
a certified bargaining unit under the CIR’s “Rule 12.” 17 In its
order in the present case, the CIR takes the view that it prom-
ulgated Rule 12 pursuant to its authority under § 48-838 of
the Industrial Relations Act to determine the appropriate unit
for bargaining purposes. The parties do not appear to dispute
that proceedings to clarify or amend the bargaining units
for state employees generally are governed by the Industrial
Relations Act. However, FOP 88 argues that based on our
decision in Hyannis Ed. Assn. v. Grant Cty. Sch. Dist. No.
38-0011, 18 the phrase “any decision or order of the [CIR]”
in § 81-1387(3) must be construed to “mean[] any order[,]
including orders regarding unit clarification.” 19 As such, FOP
88 claims that the Bargaining Act is inconsistent with the
Industrial Relations Act, because the Bargaining Act pro-
vides for appeals to this court, while the Industrial Relations
Act provides for appeals to the Court of Appeals. Therefore,
FOP 88 argues that the Bargaining Act’s provisions regarding
appeals govern, because the Bargaining Act expressly states
that it prevails when it is inconsistent with the Industrial
Relations Act. 20
16 See id. See, also, id., § 28 (adding new § 81-1383(5), which provides for
appeals to Supreme Court).
17 See Rules of the Nebraska Commission of Industrial Relations 12 (rev.
2015).
18 Hyannis Ed. Assn. v. Grant Cty. Sch. Dist. No. 38-0011, 269 Neb. 956, 698
N.W.2d 45 (2005).
19 Brief for appellee in support of motion to dismiss at 4.
20 See § 81-1372. See, also, State v. State Code Agencies Teachers Assn., 280
Neb. 459, 788 N.W.2d 238 (2010) (Industrial Relations Act and Bargaining
Act were inconsistent where negotiations pursuant to former required
comparable figures to set salaries, while latter required 2-year contracts
negotiated on rigid timeline, which could expire before comparability data
was available).

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FRATERNAL ORDER OF POLICE LODGE #88 v. STATE
Cite as 316 Neb. 28
We agree with FOP 88 that in light of our decision in
Hyannis Ed. Assn., § 81-1387(3) of the Bargaining Act encom-
passes orders regarding unit clarification and, as such, is
inconsistent with the Industrial Relations Act, with the result
that § 81-1387(3) of the Bargaining Act governs the present
appeal. 21 Hyannis Ed. Assn. concerned the proper standard
of review in an appeal of a case involving wages and work-
ing conditions brought under the Industrial Relations Act. 22
Section 48-825(4) of the Industrial Relations Act sets forth a
standard of review applicable to “[a]ny order or decision of the
[CIR].” This standard of review had previously been applied
to proceedings involving allegations of prohibited practices. 23
However, prohibited practices are referenced in § 48-825(1)
and (2) of the Industrial Relations Act, while wages and work-
ing conditions are not. We nonetheless found that the standard
of review set forth in § 48-825(4) also applied to proceedings
involving wages and working conditions, because § 48-825(4)
refers to “[a]ny order or decision of the [CIR].” We reasoned
that the term “any” “signifie[d] broad application of the stan-
dard of review enunciated therein.” 24
Section 81-1387(3) of the Bargaining Act uses virtually
identical language in providing for “[a]ny decision or order
of the [CIR]” to be appealed to this court. As such, there is
no basis for construing “any” in § 81-1387(3) more narrowly
than we construed that same term of § 48-825(4) in Hyannis
Ed. Assn. Other courts have applied the canon of construction
that “‘“[W]here the same word or group of words is used
21 See, also, Nebraska Protective Servs. Unit v. State, 299 Neb. 797, 910
N.W.2d 767 (2018) (removing appeal regarding FOP 88’s petition to
decertify collective bargaining agent for PSBU and have itself certified
instead, to this court by order of Clerk of Supreme Court).
22 Hyannis Ed. Assn., supra note 18.
23 See id. (collecting cases).
24 Id. at 963, 698 N.W.2d at 52.

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FRATERNAL ORDER OF POLICE LODGE #88 v. STATE
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in . . . different statutes, if the acts are similar in intent and
character the same meaning may be attached to them.”’” 25 We
agree that such an approach is warranted here insofar as noth-
ing in the statutes’ context indicates otherwise. 26
[5] However, we do not agree with FOP 88’s related argu-
ment that the State’s statement of its intention to appeal to the
Court of Appeals is a “jurisdictional defect” that precludes us
from exercising appellate jurisdiction over the present mat-
ter. 27 Previously, in In re Guardianship of Breeahana C., 28 the
Nebraska Court of Appeals found that it had jurisdiction where
the appellant incorrectly designated the district court, rather
than the Court of Appeals, as the court to which he intended to
appeal an order of the county court in a guardianship matter. 29
In so doing, the Court of Appeals observed that other courts
have found that “an appellant’s designation of the wrong court
in the notice of appeal is not necessarily fatal.” 30 The Court
of Appeals also observed that the courts taking this view
“seem[ed] to base their holdings in favor of the appellant upon
the notion that the court officials can correct the error” and
25 People ex rel. E.S. v. Superintendent, Livingston Corr. Facility, 40 N.Y.3d
230, 236, 219 N.E.3d 353, 357, 196 N.Y.S.3d 713, 716 (2023). See, also,
Savage v. Pierson, 123 Nev. 86, 157 P.3d 697 (2007); L & M-Surco Mfg.,
Inc. v. Winn Tile Co., 580 S.W.2d 920 (Tex. Civ. App. 1979).
26 See, e.g., State ex rel. Kelsey v. Smith, 335 Mo. 1125, 75 S.W.2d 832
(1934) (same words, occurring in different statutes of somewhat similar
character, do not necessarily bear the same interpretation; their meaning is
influenced by particular context, and sometimes by object to be attained
by statute itself).
27 Brief for appellee in support of motion to dismiss at 7.
28 In re Guardianship of Breeahana C., 14 Neb. App. 182, 706 N.W.2d 66
(2005).
29 Cf. Neb. Rev. Stat. § 30-1601 (Cum. Supp. 2022) (appeals in guardianship
matters lie to Court of Appeals in same manner as appeals from district
court).
30 In re Guardianship of Breeahana C., supra note 28, 14 Neb. App. at 185,
706 N.W.2d at 70.

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that the appellee is usually not harmed. 31 Applying that reason-
ing from other courts in In re Guardianship of Breeahana C.,
the Court of Appeals concluded that it had jurisdiction over
the appeal in that case because the appellant’s notice of appeal
was timely forwarded to it and “none of the opposing parties
claim[ed] that they have been prejudiced.” 32
We agree with the approach adopted by the Court of
Appeals in In re Guardianship of Breeahana C. and find
that we have jurisdiction over the present appeal under that
approach. The only jurisdictional defect alleged in the present
case is that the State stated an intention to appeal to the Court
of Appeals, not this court. The State then moved to bypass
the Court of Appeals, and we granted the State’s motion. FOP
88 does not allege that it was prejudiced by the State’s filing
of the notice of appeal referring to the Court of Appeals. In
fact, FOP 88 had objected to the State’s petition to bypass
the Court of Appeals on the ground that “an appeal from a
[CIR] order regarding a unit clarification proceeding should
advance like cases decided at the district court: to the Court
of Appeals for further review.” 33
FOP 88 also argues that our decision in Estate of Schluntz
v. Lower Republican NRD 34 recognized that “filing an appeal
in the wrong court is a jurisdictional defect,” which precludes
an appellate court from exercising jurisdiction. 35 However,
Estate of Schluntz involved the review of an agency action
by a district court. 36 Where a district court has statutory
authority to review such an action, the district court acquires
31 Id.
32 Id. at 186, 706 N.W.2d at 70.
33 Brief for appellee in opposition to petition to bypass at 4.
34 Estate of Schluntz v. Lower Republican NRD, 300 Neb. 582, 915 N.W.2d
427 (2018).
35 Brief for appellee in support of motion to dismiss at 7.
36 Estate of Schluntz, supra note 34.

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jurisdiction only if the review is sought in the mode and man-
ner and within the time provided by statute. 37
2018 Certification Order Does
Not Preclude State’s Claims
Because we find it dispositive, 38 we next address the State’s
argument that the CIR erred in “rel[ying] on the 2018 [c]erti-
fication [o]rder . . . in placing the [corrections unit case]
[m]anagers in the PSBU.” 39 As the State observes, in the pro-
ceedings before the CIR, neither party “address[ed] the 2018
[c]ertification [o]rder or any implications derived therefrom.” 40
FOP 88’s petition to amend or clarify the PSBU focused on
§ 48-801 of the Industrial Relations Act and § 81-1373 of the
Bargaining Act. The State’s answer had a similar focus. The
CIR sua sponte raised the matter of the 2018 order. The State
claims that the CIR erred in so doing.
[6] In light of CIR’s statement that the issue of whether
corrections unit case managers were part of the PSBU was
before the CIR in 2018 and that the CIR specifically found
they were included, we understand the CIR to have viewed
the issue as precluded, a theory that FOP 88 adopts in its
brief on appeal. Issue preclusion, also referred to as collateral
estoppel, applies where (1) an identical issue was decided in
a prior action, (2) the prior action resulted in a final judgment
on the merits, (3) the party against whom the doctrine is to be
applied was a party or was in privity with a party to the prior
action, and (4) there was an opportunity to fully and fairly
litigate the issue in the prior action. 41
37 Id.
38 Cf. Swicord v. Police Stds. Adv. Council, 314 Neb. 816, 993 N.W.2d 327
(2023) (appellate court is not obligated to engage in analysis that is not
necessary to adjudicate case or controversy before it).
39 Brief for appellant at 26.
40 Reply brief for appellant at 7.
41 In re Estate of Helms, 302 Neb. 357, 923 N.W.2d 423 (2019).

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We have previously found that administrative decisions can
have preclusive effect. 42 And we have opined that allowing
a court to raise the issue of preclusion sua sponte is “fully
consistent with the policy of avoiding unnecessary judicial
waste.” 43 However, we have also indicated that courts “infre-
quently” do so, 44 a statement that has been construed to
“imply[] that sua sponte invocations should be the exception
rather than the norm.” 45 “One of the hurdles to raising [preclu-
sion] sua sponte is that the record is likely to be insufficient to
determine if preclusion applies.” 46
This is a case where the record was insufficient for the
CIR to find preclusion sua sponte. The only evidence in the
record regarding the 2018 proceeding is (1) FOP 88’s peti-
tion to decertify NAPE Local 61 as the PSBU’s bargaining
representative, (2) the State’s answer to that petition, and (3)
the subsequent CIR order. The record of the 2018 proceeding
is not included, and neither the parties nor the CIR indicated
what evidence was considered at that time. We do observe,
42 See, e.g., Richardson v. Board of Education, 206 Neb. 18, 290 N.W.2d
803 (1980) (local board of education bound by prior order of State
Board of Education requiring it to pay tuition for out-of-state high school
in subsequent proceeding to recover tuition paid). But see, Pittsburgh
Glass Co. v. Board, 313 U.S. 146, 61 S. Ct. 908, 85 L. Ed. 1251 (1941)
(suggesting that agency decision regarding composition of bargaining unit
would not have been afforded preclusive effect in subsequent unfair labor
practice proceeding if employer had indicated that its evidence was more
than cumulative); In re Appeal of University System of NH, 147 N.H. 626,
795 A.2d 840 (2002) (similar).
43 Dakota Title v. World-Wide Steel Sys., 238 Neb. 519, 526, 471 N.W.2d
430, 435 (1991).
44 Id. at 525, 471 N.W.2d at 434. See, also, Martin v. Nebraska Dept. of
Corr. Servs., 267 Neb. 33, 671 N.W.2d 613 (2003) (declining to raise
claim preclusion, also known as res judicata, sua sponte); Strom v. City of
Oakland, 255 Neb. 210, 583 N.W.2d 311 (1998) (declining to invoke issue
preclusion and claim preclusion sua sponte).
45 John P. Lenich, Nebraska Civil Procedure § 8:16 at 426 (2023).
46 Id. at 426-27.

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however, that while FOP 88’s decertification petition alleged
that the job classifications in the PSBU were occupationally
and functionally related and had a community of interest with
one another, it did not allege that corrections unit case manag-
ers were not supervisors under § 48-801(14). Given this cir-
cumstance, it seems unlikely that evidence regarding whether
corrections unit case managers were supervisors was heard in
the 2018 proceeding.
It also cannot be said that a preponderance of the competent
evidence on the record considered as a whole supports the
CIR’s finding that the PSBU has included and will continue
to include corrections unit case managers pursuant to its 2018
certification order. The CIR found that the State has been
“quietly using two different classifications” of corrections
unit case managers since before the 2018 proceedings and
“unilateral[ly] differentiat[ed]” between the “P” and “V” job
codes. However, although the CIR may not have learned of the
State’s view that at least some corrections unit case managers
were supervisors until the present matter, it does not necessar-
ily follow that the State’s view was unknown to the union or
that the State acted unilaterally.
There was testimony at the hearing in the present matter
that when FOP 88 sought to decertify NAPE Local 61, FOP 88
was informed by the State’s “[c]hief negotiator” that at “some
point in time,” the State took corrections unit case managers
out of the PSBU and “put them into the supervisory unit,”
and that “NAPE never objected.” The evidence at the hear-
ing also showed that the labor contracts in effect for 2015-17
and 2017-19 provided for the exclusion of employees who
“occup[ied] positions identified as supervisory . . . either as
agreed upon by the [e]mployer and the [u]nion or as identi-
fied at any time by the [CIR] or court of proper jurisdiction.”
Insofar as NAPE Local 61 did not “object” to the State’s
identifying corrections unit case managers as supervisory, the
union could be seen to have agreed with the State under the

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plain meaning of the term “agree.” 47 The CIR has previously
addressed cases where after it first certified the bargaining
unit, specific position titles were “taken out of the bargaining
unit in subsequent negotiation sessions.” 48
Admittedly, the 2021-23 labor contract does provide that
it “supersede[d] and cancel[ed] all prior practices and agree-
ments, whether written or oral, unless expressly stated to the
contrary herein.” However, even if this language were con-
strued to apply to any prior understanding between the State
and NAPE Local 61 regarding the composition of the PSBU,
the 2021-23 labor contract took effect on July 1, 2021. That
was after the 2018 certification proceeding and after FOP 88
filed its petition in the present case.
The record in the present case is also inconsistent with
the CIR’s statements that there is “no reason to think [that]
the [c]ertification [o]rder was referring to an empty and
never-used position code” and that the State did not offer
“any evidence to explain the alleged differences in duties
and responsibilities” between the two corrections unit case
manager positions that the State alleged existed. When list-
ing the classifications that it sought to represent, FOP 88’s
petition to decertify NAPE Local 61 stated that “some of
these classes may currently be vacant.” A witness for the
State testified similarly at the hearing in the present matter
that all the employees whom the Department of Correctional
Services could identify as having held the position of correc-
tions unit case manager had a “V” job code. In other words,
those employees were supervisors and, as such, not included
in the PSBU. In addition, exhibit 516, which was offered by
the State and admitted into evidence, showed corrections unit
case manager positions with different duties. Specifically,
47 See Black’s Law Dictionary 84 (11th ed. 2019).
48 See, e.g., United Food and Commercial Workers District Local 22 v.
County of Hall, No. 1081, 2005 WL 6120819 at *1 (C.I.R. Mar. 24, 2005).

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exhibit 516 showed that some corrections unit case manager
positions supervised corrections unit caseworkers, while oth-
ers did not.
Because the CIR erred in finding that the PSBU has
included and will continue to include corrections unit case
managers pursuant to its 2018 order, we reverse the CIR’s
order and remand this matter to the CIR to again rule on
whether the PSBU includes corrections unit case managers
based on the existing record and to provide an explanation
which forms the basis for its ruling. 49 We are cognizant that
generally we do not require a district court to explain its
reasoning. 50 However, while the CIR summarily concluded
that corrections unit case managers were not supervisors and
impliedly found that they were occupationally and function-
ally related to and have a community of interest with other
employees in the PSBU, the CIR did not make any findings of
fact as to those matters. Instead, its findings of fact concerned
the 2018 decertification proceeding and the State’s subse-
quent refusal to bargain as to corrections unit case managers.
Section 48-817 of the Industrial Relations Act requires the
CIR to make all findings, findings of fact, recommended deci-
sions and orders, and decisions and orders in writing.
CONCLUSION
Because the CIR erred in giving preclusive effect to its
2018 order certifying FOP 88 as the bargaining representa-
tive for the PSBU, we reverse the CIR’s order and remand
49 Cf. Tchikobava v. Albatross Express, 293 Neb. 223, 876 N.W.2d 610
(2016) (taking same approach to decision by Workers’ Compensation
Court, another entity whose decisions appellate court may modify, reverse,
or set aside only when (1) entity acted without or in excess of its powers;
(2) judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in record to warrant making of order,
judgment, or award; or (4) findings of fact by compensation court do not
support order or award).
50 Brumbaugh v. Bendorf, 306 Neb. 250, 945 N.W.2d 116 (2020).

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the matter to the CIR to again rule on whether the PSBU
includes corrections unit case managers based on the existing
record and to provide an explanation that forms the basis for
its ruling.
Reversed and remanded with directions.
Heavican, C.J., participating on briefs.