The question of whether state employees have the right to negotiate sudden changes to their telework arrangements may be in court for the last time, as the state employees union has now appealed a recent labor court decision to the Nebraska Supreme Court.

The legal battle between the Nebraska Association of Public Employees (NAPE/AFSCME Local 61), which represents about 8,000 state employees, and Governor Jim Pillen began in November 2023 after Pillen signed an executive order ending all telework assignments by state employees and calling them back to the office.

In July, the Nebraska Commission on Industrial Relations (CIR) dismissed the union’s lawsuit, finding that the state of Nebraska had violated state law by refusing to negotiate. In addition, the CIR ordered NAPE to pay the state’s $111,000 in legal fees because the union filed the lawsuit in bad faith.

Now NAPE has taken the decision to the Nebraska Supreme Court and appealed both the decision and the award of attorney fees.

“We decided to appeal not to debate the merits of remote work, but to protect our members’ right to negotiate and to get clarity from the Nebraska Supreme Court on when the state must negotiate working conditions,” said Justin Hubly, NAPE’s executive director, during a press conference Tuesday. “Nebraska public officials have one remedy when they have a labor dispute, and that is to file a complaint with the CIR. Officials should not have to weigh whether to file a complaint or pay exorbitant legal fees when the CIR disagrees with the official’s argument. We will not be deterred from exercising our rights.”

Union members believe the Supreme Court must determine whether all employment conditions related to telework are covered by the current collective agreement and whether the broad language in the contract’s management rights clause is sufficient to allow the state to refuse to negotiate under the CIR’s “contract coverage” analysis.

Under the state constitution, the governor’s office is represented by the attorney general. Hubly said the attorney general’s office decided to hire outside attorneys from Rembolt Ludtke, a local Lincoln law firm, at their hourly rate to handle the case – rather than the attorneys already working in the office.

Hubly questions the admissibility of such a practice and further argues that the awarding of attorneys’ fees is questionable, if not unprecedented.

“We have reviewed 30-year-old files at the CIR and the CIR has never paid legal fees to the government in a case. This is the first time and that is one of the reasons we are appealing,” Hubly said.

In September, in accordance with state law, the union will begin negotiations on its next labor contract, which will run from July 1, 2025, to June 30, 2027. Union members have prioritized negotiating new contract language that allows state employees to provide services remotely when doing so is efficient and effective. NAPE/AFSCME is always ready to meet with the Governor to negotiate remote work.

“We are confident that we can work with the governor to find a solution that will set the state of Nebraska up for success for years to come. We hope he will meet with us and end this litigation. When we work together, we are all better off,” Hubly concluded.