Douglas Cty. Health Ctr. Sec. Union v. Douglas Cty.

DOUGLAS CTY. HEALTH CTR. SEC. UNION v. DOUGLAS CTY. 	109
Cite as 284 Neb. 109
in good standing in the profession of being a commissioner.
This interpretation would mean that incumbents already hold
ing the office were subject to an eligibility requirement that
did not apply to persons seeking the office for the first time.
If the Legislature had intended to distinguish between incum
bents seeking reelection and persons seeking election for the
first time, it would have set out separate requirements. But it
did not.
Instead, subsection (1) is more sensibly read to set out the
requirements for any person seeking the office of commis
sioner. When interpreted in this manner, the Legislature obvi
ously meant that a commissioner must be in good standing
in any profession of which he or she is a member or practi
tioner—outside of the duties imposed upon a commissioner
while holding office.
CONCLUSION
[6] Because the Legislature did not intend service on the
PSC to be read as a profession for which one must be “in good
standing according to the established standards of” that profes
sion, we conclude that the district court was correct in dismiss
ing the Rosbergs’ challenges.
A ffirmed.
StephAn, J., participating on briefs.
douglAS C ounty heAlth C enter SeCurity union, Appellee,
v. douglAS C ounty, nebrASkA, AppellAnt.
817 N.W.2d 250
Filed July 13, 2012. 	No. S 11 778.
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: Labor and Labor Relations. Under
Nebraska’s Industrial Relations Act, the Commission of Industrial Relations has
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

110 	284 NEBRASKA REPORTS
the authority to decide industrial disputes and to determine whether any party to
an agreement has committed a prohibited practice.
3. 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.
4. Commission of Industrial Relations. Neb. Rev. Stat. § 48 818 (Reissue 2010)
sets out mandatory topics of bargaining: The Commission of Industrial Relations
may issue orders that establish or alter the scale of wages, hours of labor, or con
ditions of employment, or any one or more of the same.
5. Labor and Labor Relations: Waiver. Under the clear and unmistakable waiver
standard utilized by the National Labor Relations Board, equivocal, ambiguous
language in a bargaining agreement is insufficient to establish waiver of bargain
ing rights under a collective bargaining agreement.
6. ____: ____. Under the clear and unmistakable waiver standard, the parties to a
collective bargaining agreement must unequivocally and specifically express their
mutual intention to permit unilateral employer action with respect to a particular
employment term.
7. Labor and Labor Relations: Contracts. 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.
8. Labor and Labor Relations: Federal Acts. While decisions under the National
Labor Relations Act are helpful in interpreting Nebraska’s Industrial Relations
Act, such decisions are not binding on the Nebraska Supreme Court.
9. Commission of Industrial Relations: Administrative Law. The Commission of
Industrial Relations is an administrative agency empowered to perform a legisla
tive function and, as such, has no power or authority other than that specifically
conferred on it by statute or by a construction thereof necessary to accomplish the
purposes of the act establishing the commission.
10. Commission of Industrial Relations: Breach of Contract. The Commission of
Industrial Relations does not have the authority to hear cases involving an alleged
breach of a contract.
11. 	Contracts: Claims: Courts. The proper forum to pursue claims involving con
tract interpretation is the district court.
Appeal 	from 	the 	Commission 	of 	Industrial 	Relations.
Reversed and remanded with directions.
Donald W. Kleine, Douglas County Attorney, and Diane M.
Carlson for appellant.
Raymond R. Aranza, of Scheldrup, Blades, Schrock, Smith
& Aranza, P.C., for appellee.
heAviCAn, C.J., Wright, C onnolly, StephAn, mCC ormACk,
and miller-lermAn, JJ.

DOUGLAS CTY. HEALTH CTR. SEC. UNION v. DOUGLAS CTY. 	111
Cite as 284 Neb. 109
heAviCAn, C.J.
INTRODUCTION
The Douglas County Health Center Security Union (Union)
filed a petition before the Commission of Industrial Relations
(CIR) alleging that its employer, Douglas County, Nebraska
(County), had engaged in certain prohibited practices. The
CIR found the County had engaged in a prohibited practice
when it failed to negotiate its intention to contract out bargain
ing unit work to a private security company. The CIR ordered
the parties to recommence negotiation and awarded the Union
attorney fees and costs. The County appeals. We reverse, and
remand the decision of the CIR, with directions to vacate its
order and dismiss the Union’s petition.
FACTUAL BACKGROUND
The Douglas County Health Center (DCHC) is an agency
of the County. The Union is the recognized bargaining unit for
all full 	and part time DCHC security guards and represents
approximately eight guards. The parties entered into a col
lective bargaining agreement (CBA) effective from January
1, 2007, to December 31, 2009. The CBA contained the fol
lowing language, which is relevant to the issues presented by
this case:
ARTICLE 16
MANAGEMENT RIGHT OF CONTRACTING
AND SUB-CONTRACTING
Section 1. The Union recognizes that the right of con
tracting and sub contracting is vested in the County. The
right to contract or subcontract shall not be used for the
purpose or intention of undermining the Union, nor to
discriminate against any employees.
Section 2. If the contracting out or subcontracting of
bargaining unit work has the effect of eliminating bar
gaining unit jobs, the County agrees to notify the Union
as early as possible in advance of the same in order
to provide the Union with an opportunity to discuss
with the County the necessity and effect on bargaining
unit employees.

112 	284 NEBRASKA REPORTS
As noted above, this CBA expired on December 31, 2009. But
the record contains uncontested evidence that the parties have
continued to operate as if it were still in effect. We will like
wise treat the CBA as being in effect.
On approximately March 1, 2011, the DCHC received notice
from the budget committee of the county board that it, along
with most other of the County’s agencies, would be required
to reduce by 4 percent its 2011 12 budget. This reduction
amounted to about $1.6 million.
The record shows that after receiving this directive, James
Tourville, the DCHC administrator, considered different options
by which to reduce the DCHC budget. In connection with this
process, Tourville contacted a private security firm to deter
mine whether any cost savings would be had by outsourcing
that work. According to evidence in the record, a cost savings
of between $140,000 and $160,000 could be achieved by pri
vatizing the security work.
At this time, Tourville contacted a deputy county admin
istrator whose job responsibilities included negotiation with
labor unions on behalf of the County. The administrator appar
ently indicated that there were no CBA related issues with
outsourcing the security work. In early April 2011, Tourville
approached the county board and was told to “proceed with
contracting out the service,” which apparently included notify
ing the Union and beginning the competitive bid process.
On April 25, 2011, Tourville and the deputy county admin
istrator met with Union representatives to inform them that the
security work would be outsourced. The County acknowledges
that it did not negotiate with the Union, but, rather, informed
the Union of the decision. The Union was asked to offer any
cost savings it might have to avoid the outsourcing. At some
point subsequent to this meeting, the Union offered to reduce
the uniform allowance paid to its workers, amounting to a cost
savings of between $8,000 and $10,000. At the meeting, the
Union was also informed that the Union’s members would be
allowed to apply for jobs with the new vendor.
On May 24, 2011, the Union filed a petition with the CIR
alleging, restated, that the County committed several instances
of 	prohibited 	practices, 	including 	(1) 	discouraging 	union

DOUGLAS CTY. HEALTH CTR. SEC. UNION v. DOUGLAS CTY. 	113
Cite as 284 Neb. 109
membership and denying the rights afforded to the Union, in
violation of Neb. Rev. Stat. § 48 824(2)(a), (c) and (f) (Reissue
2010); (2) failing to negotiate with the Union in advance of
outsourcing the security work, in violation of § 48 824(2)(b),
(c), and (e); and (3) informing Union representatives that the
Union was too expensive, that outsourcing the work would
be cheaper, and that the Union’s members could probably be
hired by the private vendor, in violation of § 48 824(2)(a), (b),
and (c).
It appears that following the filing of this petition, the
County submitted a request for proposals, placing out for bid
DCHC’s security work. In response, on June 10, 2011, the CIR
entered a status quo order, ordering the County to not alter
the employment status, wages, or terms and conditions of the
Union’s employees.
A hearing was held before the CIR on August 8, 2011. On
August 18, the CIR issued an order finding that the County
had engaged in a prohibited practice when it failed to negoti
ate with the Union prior to outsourcing the security work. In
particular, the CIR found that the County had undermined the
Union when it outsourced all security jobs, thus leaving no
members left in the bargaining unit. The CIR ordered the par
ties to recommence negotiations over outsourcing work within
30 days. The CIR further ordered the County to pay attorney
fees and costs, which amounted to $6,029.02.
ASSIGNMENTS OF ERROR
On appeal, the County assigns, restated and consolidated,
that the CIR erred in (1) finding that the County committed
a prohibited practice by failing to negotiate with the Union
over the County’s decision to outsource bargaining unit work,
(2) finding that the County’s motivation was to undermine the
Union or discriminate against its members, (3) not properly
interpreting article 16 of the CBA, and (4) awarding attor
ney fees.
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

114 	284 NEBRASKA REPORTS
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.1
ANALYSIS
On appeal, the County’s primary argument is that the CIR
was incorrect in ordering it to bargain over the issue of out
sourcing the security jobs at the DCHC, because, according
to the County, “the CIR failed to recognize that the parties
had already negotiated the topic and that the result of that
negotiation is clearly set forth in Article 16 of the CBA.”2
The resolution of this case requires this court to examine
issues of contract coverage and waiver in collective bargain-
ing agreements.
Contract Coverage and Waiver.
[2 4] 	The 	general 	principles 	are 	familiar 	ones. 	Under
Nebraska’s Industrial Relations Act, the CIR has the author
ity to decide industrial disputes3 and to determine whether any
party to an agreement has committed a prohibited practice.4
Under § 48 824(1), 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 man
datory topics of bargaining. Neb. Rev. Stat. § 48 818 (Reissue
2010) sets out mandatory topics of bargaining: The CIR may
issue orders that “establish or alter the scale of wages, hours
of labor, or conditions of employment, or any one or more of
the same.” And in this case, the parties agree that the topic at
hand—the outsourcing of bargaining unit jobs—is a mandatory
topic of bargaining.
1 Scottsbluff Police Off. Assn. v. City of Scottsbluff, 282 Neb. 676, 805
N.W.2d 320 (2011).
2 Brief for appellant at 12.
3 Neb. Rev. Stat. § 48 819.01 (Reissue 2010).
4 § 48 824.

DOUGLAS CTY. HEALTH CTR. SEC. UNION v. DOUGLAS CTY. 	115
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It is here that the parties’ views diverge. The Union con
tends that the County had an obligation to bargain over the
outsourcing of bargaining unit jobs because it did not clearly
and unmistakably waive its right to bargaining in the CBA.
The County, however, argues that it already bargained with
the Union on this topic at the time the parties entered into the
CBA, that the results of this bargaining are encompassed in
article 16 of the parties’ CBA, and that no further bargaining is
required at this time.
[5,6] The “clear and unmistakable” waiver standard is uti
lized by the National Labor Relations Board. Under that stan
dard, “[e]quivocal, ambiguous language in a bargaining agree
ment” is insufficient to establish waiver of bargaining rights
under a CBA.5 Rather, the parties must “‘unequivocally and
specifically express their mutual intention to permit unilat
eral employer action with respect to a particular employment
term.’”6 For example, where a contractual provision allowed
for benefits to be provided for “‘ninety (90) days following
termination,’” the language was not “a clear and unmistakable
waiver with respect to the continuation of benefits beyond”
that time period, because it did not specifically address that
time period.7 The Union contends that article 16 is not a clear
and unmistakable waiver of its right to bargain over the elimi
nation of all bargaining unit jobs.
[7] But several circuit courts of appeals have instead deter
mined that the threshold question is whether the issue was
“covered by” the CBA. Only if it was not “covered by” the
CBA, do these courts consider whether the CBA contained a
clear and unmistakable waiver. Those circuits have adopted
the “contract coverage” rule, which treats the issue of whether
there had been a failure to bargain as a simple matter of con
tract interpretation—if the issue was “covered by” the CBA,
then the parties have no further obligation to bargain the issue.
5 Local Joint Executive Bd. of Las Vegas v. N.L.R.B., 540 F.3d 1072, 1079
(9th Cir. 2008).
6 Id. at 1079 80.
7 Id. at 1081. See N.L.R.B. v. General Tire and Rubber Co., 795 F.2d 585
(6th Cir. 1986).

116 	284 NEBRASKA REPORTS
The difference between these theories has been explained by
the District of Columbia Circuit:
[T]he “covered by” and “waiver” inquiries . . . are ana
lytically distinct. A waiver occurs when a union know
ingly and voluntarily relinquishes its right to bargain
about a matter; but where the matter is covered by the
collective bargaining agreement, the union has exer-
cised its bargaining right and the question of waiver is
irrelevant. . . .
“Where the contract fully defines the parties’ rights
as to what would otherwise be a mandatory subject of
bargaining, it is incorrect to say the union has ‘waived’
its statutory right to bargain; rather, the contract will
control and the ‘clear and unmistakable’ intent standard
is irrelevant.”8
In applying this standard, courts first inquire as to whether
the subject at issue was “covered by” the CBA. If it was, it
becomes a contract interpretation question. But if the subject
was not “covered by” the contract, whether the subject was
waived is examined.
In fact, the CIR has adopted this “covered by” language,9
though it has not applied it consistently.10 In F.O.P., Lodge
No. 21 v. City of Ralston, NE,11 the CIR cited to Dept. of Navy,
Marine Corps Logistics Base v. FLRA12 for its explanation of
the distinction between contract coverage and waiver. The CIR
went on to explain why it mattered: If the change in health
insurance was “‘contained in’” the CBA, the dispute was a
8 Dept. of Navy, Marine Corps Logistics Base v. FLRA, 962 F.2d 48, 57
(D.C. Cir. 1992).
9 See F.O.P., Lodge No. 21 v. City of Ralston, NE, 12 C.I.R. 59 (1994). See,
also, Washington County Police Officers Association/F.O.P. Lodge 36 v.
County of Washington, State of Nebraska, No. 1247, 2011 WL 2286982
(C.I.R. May 31, 2011).
10 Cf. General Drivers & Helpers Union, Local No. 554 v. County of
Douglas, Nebraska, No. 1224, 2009 WL 5220888 (C.I.R. Nov. 24, 2009)
(status quo order).
11 F.O.P., Lodge No. 21, supra note 9.
12 Dept. of Navy, Marine Corps Logistics Base, supra note 8.

DOUGLAS CTY. HEALTH CTR. SEC. UNION v. DOUGLAS CTY. 	117
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breach of contract claim outside of the scope of the CIR’s
authority.13
[8] While decisions under the National Labor Relations Act
are helpful in interpreting Nebraska’s Industrial Relations Act,
such decisions are not binding on this court.14 And in this case,
we are persuaded, not by the National Labor Relations Board’s
view of waiver under the National Labor Relations Act, but by
the circuit courts that have adopted the contract coverage rule.
In particular, we find persuasive the reasoning of the District
of Columbia Circuit:
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. 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 National Labor Relations Board or
the courts to interfere with the parties’ choice. [Citation
omitted.] On the other hand, when a union waives its
right to bargain about a particular matter, it surrenders
the opportunity to create a set of contractual rules that
bind the employer, and instead cedes full discretion to
the employer on that matter. For that reason, the courts
require “clear and unmistakable” evidence of wavier and
have tended to construe waivers narrowly.15
We find the distinction between contract coverage and waiver
to be both logically and analytically correct, and as such, we
adopt it.
Was Subcontracting “Covered By” CBA?
We therefore consider the threshold question of whether the
subcontracting of bargaining unit jobs at DCHC was “covered
by” the CBA. In conducting this inquiry, we examine whether
the CBA “fully defines the parties’ rights” as to this topic.
13 F.O.P., Lodge No. 21, supra note 9 at 63.
14 See Scottsbluff Police Off. Assn., supra note 1.
15 Dept. of Navy, Marine Corps Logistics Base, supra note 8 at 57.

118 	284 NEBRASKA REPORTS
Whether a topic is “covered by” a CBA was at issue in
Dept. of Navy, Marine Corps Logistics Base,16 which involved
two separate petitions filed by a union against its employer,
the Marine Corps. The first petition dealt with the reassign
ment of personnel, also referred to as employee “details”; the
second petition dealt with a change in performance evaluation
factors. As relevant to the first petition, the CBA contained
provisions defining when employee “details” would be imple
mented, how long the detail could last, and the effect of the
detail on an employee’s salary and liability for union dues.
After certain employees were detailed, the union filed a peti
tion with the Federal Labor Relations Authority (FLRA), argu
ing that bargaining was required. The FLRA agreed, applying
what was essentially a waiver analysis, and concluded that
individual details on the local level were not addressed in
the CBA.
As to the issue of performance evaluations, the CBA estab
lished comprehensive procedures for the employer to fol
low when it modified performance criteria, including advance
notice, an opportunity for employee participation, and a require
ment that the standards be “‘fair and reasonable.’”17 After the
standards were changed, the union objected. The FLRA again
agreed that bargaining was not waived, because the CBA did not
specifically address the “‘full range of impact and implementa-
tion’” issues.18
The District of Columbia Circuit, applying its contract cover
age standard, held that in both instances, the topics at issue were
“covered by” the CBA. The court conceded that the FLRA was
correct that the CBA did not “‘specifically address . . . the full
range of impact and implementation issues’ that might conceiv
ably arise,” but noted that this standard was “both unrealistic
and impermissible.”19 We similarly conclude that the dispute
over the subcontracting of DCHC security work is “covered
by” the parties’ CBA in this case.
16 Dept. of Navy, Marine Corps Logistics Base, supra note 8.
17 Id. at 61.
18 Id. at 53.
19 Id. at 62.

DOUGLAS CTY. HEALTH CTR. SEC. UNION v. DOUGLAS CTY. 	119
Cite as 284 Neb. 109
In this case, article 16, § 1, of the CBA provides that
the “Union recognizes that the right of contracting and sub
contracting is vested in the County. The right to contract or
subcontract shall not be used for the purpose or intention
of undermining the Union, nor to discriminate against any
employees.” Section 2 further notes that “[i]f the contracting
out or subcontracting of bargaining unit work has the effect
of eliminating bargaining unit jobs,” the County will notify
the Union and “provide the Union with an opportunity to dis
cuss with the County the necessity and effect on bargaining
unit employees.”
We conclude that the subcontracting of bargaining unit jobs
is clearly “covered by” article 16 of the CBA. That article
specifically notes the steps that the County needs to follow
when “the contracting out or subcontracting of bargaining
unit work has the effect of eliminating bargaining unit jobs.”
And the elimination of bargaining unit jobs is at issue in
this dispute.
We recognize that article 16 does not specifically mention
the elimination of the entire bargaining unit, which would be
the result of the County’s action in this case. But we decline
to read article 16 so strictly as to conclude that it would not
cover the subcontracting dispute at issue in this case. To
strictly read article 16 would essentially apply the “unrealistic
and impermissible”20 waiver standard in the first instance, and
would be antithetical to the contract coverage principles we
now adopt.
Result.
[9,10] The CIR is an administrative agency empowered to
perform a legislative function and, as such, has no power or
authority other than that specifically conferred on it by stat
ute or by a construction thereof necessary to accomplish the
purposes of the act establishing the CIR.21 Under Nebraska’s
Industrial Relations Act, the CIR has the authority to decide
20 Id.
21 Central City Ed. Assn. v. Merrick Cty. Sch. Dist., 280 Neb. 27, 783 N.W.2d
600 (2010).

120 	284 NEBRASKA REPORTS
industrial disputes22 and to determine whether any party to an
agreement has committed a prohibited practice.23 But the CIR
does not have the authority to hear cases involving the alleged
breach of a contract.24
[11] We have concluded that the subcontracting issue pre
sented by this case is “covered by” the parties’ CBA. And
determining whether the County’s action was allowed by the
CBA involves a question of the proper interpretation of that
contract. This is something over which the CIR lacks author
ity.25 The proper forum to pursue such claims is the district
court.26 As such, we reverse, and remand the decision of the
CIR, with directions to the CIR to vacate its order and dismiss
the Union’s petition.
CONCLUSION
We conclude that the issue of the subcontracting of bargain
ing unit jobs resulting in the elimination of bargaining unit
jobs is “covered by” the CBA and presents an issue of con
tract interpretation over which the CIR lacks jurisdiction. We
accordingly reverse, and remand to the CIR, with directions to
vacate its order and dismiss the Union’s petition.
reverSed And remAnded With direCtionS.
22 § 48 819.01.
23 § 48 824.
24 See Transport Workers of America v. Transit Auth. of City of Omaha, 205
Neb. 26, 286 N.W.2d 102 (1979).
25 See id.
26 See id.