Fraternal Order of Police v. City of York , 309 Neb. 359 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
FRATERNAL ORDER OF POLICE v. CITY OF YORK
Cite as 309 Neb. 359Fraternal Order of Police Lodge 31,
petitioner, v. City of York,
Nebraska, respondent.
___ N.W.2d ___
Filed May 28, 2021. No. S-20-588.
1. Commission of Industrial Relations: Evidence: Appeal and Error.
In an appeal from an order by the Commission of Industrial Relations
regarding prohibited 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 pre-
ponderance of the competent evidence.
2. 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.
3. Labor and Labor Relations: Commission of Industrial Relations.
Under Nebraska’s Industrial Relations Act, the Commission of Indus­
trial Relations has the authority to decide industrial disputes and to
determine whether any party to an agreement has committed a prohib-
ited practice.
4. Labor and Labor Relations. The Industrial Relations Act requires par-
ties to negotiate only mandatory subjects of bargaining.
5. ____. Mandatory subjects of bargaining are set forth in Neb. Rev. Stat.
§ 48-818 (Cum. Supp. 2020) and include the scale of wages, hours of
labor, or conditions of employment.
6. ____. 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.
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309 Nebraska Reports
FRATERNAL ORDER OF POLICE v. CITY OF YORK
Cite as 309 Neb. 3597. ____. A matter which is of fundamental, basic, or essential concern to an
employee’s financial and personal concern may be considered as involv-
ing working conditions and is mandatorily bargainable even though
there may be some minor influence on educational policy or manage-
ment prerogative.
8. Labor and Labor Relations: Contracts. The threshold question in
determining whether a public employer has committed a prohibited
practice is often whether a mandatory subject of bargaining was “cov-
ered by” the collective bargaining agreement.
9. ____: ____. Under the “contract coverage” rule, a court first analyzes as
a simple question of contract interpretation whether the mandatory topic
of bargaining was covered by the collective bargaining agreement.
10. Labor and Labor Relations: Contracts: Waiver. A court does not
analyze whether the parties have clearly and unmistakably waived their
rights to bargain over a mandatory subject of bargaining unless the court
first finds that the subject was not covered by the collective bargain-
ing agreement.
11. Labor and Labor Relations: Contracts. If a topic is covered by the
collective bargaining agreement, then the parties have no further obliga-
tion to bargain the issue.
12. ____: ____. A subject covered by a collective bargaining agreement has
already been fully negotiated, and the public employer, by following
the agreement’s provisions, does not refuse to negotiate collectively
with representatives of collective bargaining agents as required by the
Industrial Relations Act or to negotiate in good faith with respect to
mandatory topics of bargaining.
13. ____: ____. If a topic is covered by a collective bargaining agreement,
then imposing upon an employee the agreement’s provisions in relation
to that topic does not interfere with, restrain, or coerce that employee in
the exercise of rights granted by the Industrial Relations Act or deny the
rights accompanying certification or recognition granted by the Indus­
trial Relations Act.
14. ____: ____. Whether an agreement “covers” a mandatory subject of bar-
gaining is considered in light of the policies embodied in the Industrial
Relations Act.
15. ____: ____. While vague, all-inclusive statements that employers “may
do whatever they please” are insufficient to establish that all topics are
thereby covered by a collective bargaining agreement, neither does a
collective bargaining agreement have to specifically mention every par-
ticular subject for it to be covered by the agreement.
16. ____: ____. A court must bear in mind the importance of finality to
collective bargaining during the term of an agreement and reject any
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
FRATERNAL ORDER OF POLICE v. CITY OF YORK
Cite as 309 Neb. 359construction that treats an agreement as but a starting point for constant
negotiation over every public employer action.
17. Contracts. If a contract’s terms are clear, a court may not resort to the
rules of construction and must give the terms their plain and ordinary
meaning as a reasonable person would understand them.
18. ____. A court must consider a contract as a whole and, if possible, give
effect to every part of the contract.
Appeal from the Nebraska Commission of Industrial
Relations. Affirmed.
Thomas P. McCarty and Gary L. Young, of Keating, O’Gara,
Nedved & Peter, P.C., L.L.O., for appellant.
Kari A. F. Scheer and Jerry L. Pigsley, of Woods Aitken,
L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
A bargaining agent brought suit before Nebraska’s Com­
mission of Industrial Relations (CIR) against a public employer
for prohibited labor practices. The bargaining agent asserted
that in relation to a residency requirement for a promotion, the
public employer engaged in prohibited labor practices by deal-
ing directly with an employee represented by the bargaining
agent, making a unilateral change to the collective bargain-
ing agreement, and refusing to negotiate in good faith over
mandatory subjects of bargaining. We affirm.
BACKGROUND
Fraternal Order of Police Lodge 31 (FOP) is a labor orga-
nization as that term is defined in Neb. Rev. Stat. § 48-801(7)
(Cum. Supp. 2020) and is the exclusive collective bargain-
ing agent for a bargaining unit consisting of police officers,
sergeants, and lieutenants of the York Police Department
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
FRATERNAL ORDER OF POLICE v. CITY OF YORK
Cite as 309 Neb. 359(Department). FOP brought this action against the City of York,
Nebraska, as the political subdivision that employs FOP’s bar-
gaining unit.
Collective Bargaining Agreements
and Relevant Provisions
The parties entered into a collective bargaining agreement
effective September 22, 2014, through September 30, 2018
(the 2014 agreement). This agreement was to be in effect
until a new agreement was reached. Following negotiations in
2018, a new collective bargaining agreement was signed on
January 9, 2019, to be effective retroactively starting October
1, 2018, and continuing through September 30, 2020 (the 2019
agreement). During the negotiations leading to the 2019 agree-
ment, neither party demanded the inclusion of any provision
related to the issue of a residency requirement applying to
FOP members.
Article III of both the 2014 and 2019 agreements contained
a management rights provision stating:
Section 3.1 All management rights, functions, respon-
sibilities, and authority not specifically limited by the
express terms of this agreement are retained by the City
and remain exclusively within the rights of the City.
Section 3.2 [FOP] acknowledges the concept of inher-
ent management rights. These rights, powers, and author-
ity of the City include, but are not limited to the following:
....
e. The right to hire, examine, classify, promote, train,
transfer, assign, and retain employees . . . .
....
g. The right to determine, establish, and implement
policies for the selection, training, and promotion of
employees.
....
j. The right to adopt, modify, change, enforce, or dis-
continue any existing rules, regulations, procedures, and
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FRATERNAL ORDER OF POLICE v. CITY OF YORK
Cite as 309 Neb. 359policies which are not in direct conflict with any provi-
sions of this Agreement.
Article XI of both agreements also contains the same promo-
tion provision: “Section 11.1 If any position that is represented
by [FOP] or will be represented by [FOP] in the future, except
Police Officer should become vacant, competitive testing for
the position shall be conducted within the Department so long
as a qualified candidate shall present himself/herself.”
Article XXXII of both agreements also provides that each
collective bargaining agreement constitutes the entire agree-
ment and understanding concerning “all proper subjects of col-
lective bargaining for the duration of the contract” and that any
“negotiations preceding the signing of this Agreement included
negotiations on all proper subjects of bargaining.”
Neither agreement contained any provision specifically
requiring residency within York County. It is undisputed
between the parties that a residency requirement for employ-
ment or promotion is a mandatory subject of bargaining.
York Personnel Rules and Regulations
and Department Employment
Procedure Policies
While the collective bargaining agreements between FOP
and York do not contain a residency requirement, the Depart­
ment employment procedure policies do. The Department poli-
cies were effective June 1, 1995, and revised on October 1,
2010. The minimum qualifications provision, 2.8.1, provides:
“E. Residency: It is the policy of the police department that
employees live in the county of York. However, at the discre-
tion of the City Administrator, this policy may be waived. This
policy shall not preclude recruitment or hiring from outside
York County.” Establishing residency within York County is
also a condition of employment under provision 2.8.3.
York’s personnel rules and regulations were effective June
20, 2013, and provide that “[u]pon adoption [by the York
City Council], the rules shall supersede any and all personnel
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FRATERNAL ORDER OF POLICE v. CITY OF YORK
Cite as 309 Neb. 359rules, policies, regulations, or procedures previously adopted
by the Council.” The personnel rules and regulations do not
contain any residency requirements.
Officer Doug Headlee’s Promotion
and FOP’s Demands to Bargain
Requiring residency within York County for promotions was
discussed during a sergeant staff meeting on October 3, 2018,
between the York chief of police, Edward Tjaden, and the
four current sergeants within the Department. FOP president,
Sgt. Kim Christensen, testified that Tjaden stated the sergeants
should have to live in York County and wondered what the
other sergeants thought. Christensen commented that he did
not know whether or not they could do that without negotiating
it as a residency requirement within their collective bargain-
ing agreement.
On November 13, 2018, Tjaden posted a notice to the incum­
bent police officers that the Department was establishing an
eligibility list for a vacant sergeant position. This notice indi-
cated, among other things, that the chosen candidate would be
required to sign a contract in which the candidate agreed to live
within York County within 6 months of the promotion.
After the notice was posted, FOP sent a letter to the city
clerk, city administrator, mayor of York, and Tjaden demand-
ing to bargain regarding the residency requirement for pro-
motions to sergeant. This letter claimed that the residency
requirement was a condition of employment and a mandatory
subject of bargaining and, further, that it could be classified as
“side dealing.”
Officer Doug Headlee was one of four police officers who
submitted applications for the sergeant vacancy. Headlee,
who is a FOP member, had been a York police officer since
2007. Headlee applied, tested, and interviewed for the promo-
tion to sergeant between November 13, 2018, and January
8, 2019. He submitted a resume and cover letter as required
for the application portion; took a written standardized police
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309 Nebraska Reports
FRATERNAL ORDER OF POLICE v. CITY OF YORK
Cite as 309 Neb. 359supervisor promotional test on December 19, 2018; and then
was interviewed by a promotion panel on January 8, 2019.
On January 9, Headlee was notified during a personal meet-
ing with Tjaden that he was chosen to receive the promotion.
At this meeting, Tjaden presented Headlee with a copy of a
residency agreement, and Headlee testified that Tjaden told
him that he would have to comply with the terms of the agree-
ment to receive the promotion. Headlee testified that he signed
the residency agreement and accepted the promotion the next
day on January 10. The residency agreement required Headlee
to establish his domicile within York County within 6 months
after promotion and allowed him to request a waiver from the
city administrator due to personal hardship, but it stated that
failure to comply could result in discipline up to and includ-
ing termination. Headlee started working as a sergeant on
January 21.
Negotiations were continuing between FOP and York while
Headlee was taking part in the process for his promotion appli-
cation. The eighth and ninth negotiation sessions occurred in
December 2018, after FOP had sent the first demand-to-bargain
letter and before Headlee was officially awarded the promo-
tion to sergeant. FOP’s proposals submitted for these meetings
did not present any proposal restricting management rights in
the collective bargaining agreement drafts; nor was there any
proposal restricting York from following its residency policy
regarding police department employees or regarding promotion
criteria that did not include a residency requirement that would
have dealt with the establishment of residency as a requirement
for promotion to sergeant. The parties also did not discuss or
negotiate residency at these negotiation sessions. Christensen
testified that there were discussions about the demand-to-
bargain letter, but that no specifics were really discussed. FOP
took the lead in putting together the proposals that became the
2019 agreement.
After the 2019 agreement was signed and Headlee had been
promoted to sergeant and had signed a residency agreement
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309 Nebraska Reports
FRATERNAL ORDER OF POLICE v. CITY OF YORK
Cite as 309 Neb. 359agreeing to move to York County within 6 months, FOP
sent a second demand to York to bargain regarding a residency
requirement for promotions to sergeant. This letter acknowl-
edged that York had not responded to the previous request to
bargain and that the 2019 agreement did not contain any provi-
sion covering residency requirements for incumbent employ-
ees. FOP requested that York immediately halt and rescind any
actions York had taken to implement a residency requirement
and any attempts to “side deal and/or directly deal” with FOP
members regarding employment agreements.
Eventually a negotiation meeting was set up on March 19,
2019, to discuss FOP’s demand to bargain over the residency
and promotion issue. The meeting ended when the council
members told the FOP representatives, “I guess we’ll see you
in court because we’re not interested. He’s a new employee.”
The York city administrator, Joseph Frei, then sent a letter to
Christensen dated March 29, 2019, formally denying FOP’s
request to bargain. Frei explained that the residency policy was
adopted by the Department on June 1, 1995; was revised on
October 1, 2010; and has remained in force and effect at all
times since and, as such, remained an established policy of the
Department and not a new policy to negotiate.
FOP filed a prohibited practice petition with the CIR on
April 30, 2019, commencing this action.
Trial Before CIR
Trial was held before the CIR on October 1, 2019. Headlee,
Tjaden, Frei, Christensen, and York police officer Shawn
Humphrey testified.
Headlee testified that he has always lived in Lincoln,
Nebraska, even while employed as a York police officer. When
he was hired in 2007, he spoke with the chief of police at
the time, Don Klug, regarding where he was able to reside.
Headlee stated that he did not sign any kind of contract or
receive any written waiver to live outside of York County,
but that Klug allowed him to live outside of York County. He
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FRATERNAL ORDER OF POLICE v. CITY OF YORK
Cite as 309 Neb. 359testified that of the 12 certified law enforcement officers cur-
rently employed by the Department, 4 currently reside outside
of York County, all police officers. Headlee testified that he
was aware the Department has a residency policy, but that to
his knowledge, the Department had never required residency as
a condition of promotion for incumbent employees promoted to
sergeant, nor had he ever had to comply with such a require-
ment as a police officer.
By the time of trial, Headlee had not complied with the
residency requirement, nor had he requested a waiver from
the city administrator. Headlee testified that he gave notice to
his FOP representative regarding the residency requirement in
November 2018, asking FOP to determine the validity of the
residency requirement as it pertained to promoted employees,
but continued to go through the promotion application process.
It was as a result of that notice that FOP had requested, in its
first letter, to negotiate.
Humphrey, who has been employed with the Department
since 2006, testified that he also lives outside of York County.
Humphrey testified that there is a policy with regard to police
officers which includes residency, but that Klug gave him per-
mission to live outside of York County. Humphrey testified that
Klug told him he was grandfathered in and that the residency
requirements did not apply to him. Humphrey did not receive
anything in writing from Klug so stating. Humphrey has not
received a written waiver or sought one from Tjaden or the city
administrator, but he testified that he is not currently required
to comply with the residency policy.
Christensen testified that he has been an employee of the
Department for 44 years, 20 of those years as a sergeant. He
testified that in none of the approximately dozen collective
bargaining negotiations in which he had participated had resi-
dency ever been specifically addressed. Nor had it been estab-
lished as a requirement for promotion of incumbent employ-
ees. He testified that in all the years of his employment with
the Department, an incumbent officer who was promoted to
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
FRATERNAL ORDER OF POLICE v. CITY OF YORK
Cite as 309 Neb. 359sergeant had never been required to sign a residency agreement
with York, nor had the Department ever required residency as a
condition of promotion for incumbent employees.
Christensen acknowledged that the Department has a pub-
lished policy that contains an item regarding residency for
police officers, but that it does not specifically mention ser-
geant promotions. He testified that it has always been common
knowledge, even though not worded that way in the policy,
that the residency requirement applied only to new hires.
Christensen explained that FOP’s issues were only with the
residency requirement applying to the promotion of incum-
bent employees.
Frei testified that the residency agreement signed by Headlee
allowed for a waiver that had to be requested by the employee
to avoid the residency requirement. Frei testified that Headlee
never requested a waiver. Frei acknowledged that the York
personnel rules and regulations, effective in 2013, stated they
superseded all other policies approved by the city council and
that the Department residency policies were internal policies
that did not have to be approved by the city council.
Tjaden testified that when he prepared the notice for the
promotion and entered into an agreement with Headlee regard-
ing moving to York County within 6 months of the promotion,
he believed these actions were management rights covered by
the agreements and he did not need FOP’s consent. Tjaden
testified that he made it clear to Headlee when he offered him
the promotion that the residency requirement was important
to Tjaden and also to the city administrator. He expressly
asked Headlee not to sign the agreement if his intent was not
to move. After a discussion and modifications were made to
the residency agreement and Headlee had signed the contract,
Tjaden thought that meant he was going to comply with the
agreement. Tjaden testified that it became clear approximately
2 weeks later, when another demand-to-bargain letter was
filed, that Headlee was not going to abide by the agreement.
Tjaden stated that Headlee never mentioned he wanted to have
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FRATERNAL ORDER OF POLICE v. CITY OF YORK
Cite as 309 Neb. 359a FOP representative present during any of the discussions
about the promotion offer.
Order of CIR
The CIR dismissed the petition and refused to award attor-
ney fees, because the parties’ actions did not rise to the level
of egregious, willful, flagrant, aggravated, persistent, or perva-
sive behavior that would be appropriate for an award of attor-
ney fees.
The CIR acknowledged that mandatory subjects of bargain-
ing must be bargained for before, during, and after the expira-
tion of a collective bargaining agreement unless clearly waived.
However, if a mandatory subject of bargaining is “covered by”
the collective bargaining agreement, no further bargaining is
required. The CIR determined that York unambiguously has
the right to promote employees and that the promotion policies
are “covered by” sections 3.2(g) and 3.2( j) of the agreements.
The CIR determined that York did not engage in direct dealing
when it entered into the residency agreement with Headlee,
because York was just “implementing its promotion policy; not
undercutting the authority of a collective bargaining agreement
by negotiating directly with an individual employee regarding
a mandatory subject of bargaining.”
ASSIGNMENTS OF ERROR
FOP assigns that the CIR erred when it (1) dismissed the
petition, finding that the issues raised therein were “covered
by” the bargaining agreements, thereby absolving York of its
duty to bargain with FOP over the residency requirement; (2)
incorrectly applied controlling Nebraska precedent regarding
the “contract coverage” rule; (3) applied a relaxed waiver
standard to hold York was absolved from bargaining with FOP
over the implementation of the residency requirement based
upon broad and nonspecific management rights provisions;
(4) held the bargaining agreements’ provisions granted York
the authority to deal directly with an FOP bargaining unit
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FRATERNAL ORDER OF POLICE v. CITY OF YORK
Cite as 309 Neb. 359member regarding residency; (5) found York did not commit
a prohibited labor practice under Neb. Rev. Stat. § 48-824(1)
and (2)(a), (e), and (f ) (Cum. Supp. 2020) when it imple-
mented a residency requirement without bargaining with FOP
to impasse, and (6) found York did not commit a prohibited
labor practice under § 48-824(1) and (2)(a), (e), and (f ) when
it dealt directly with an FOP bargaining unit member regarding
residency requirements.
STANDARD OF REVIEW
[1] 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. 1
[2] 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. 2
ANALYSIS
[3] Under Nebraska’s Industrial Relations Act, 3 the CIR has
the authority to decide industrial disputes and to determine
whether any party to an agreement has committed a prohib-
ited practice. 4 Section 48-824 defines prohibited practices.
1
Scottsbluff Police Off. Assn. v. City of Scottsbluff, 282 Neb. 676, 805
N.W.2d 320 (2011).
2
Douglas Cty. Health Ctr. Sec. Union v. Douglas Cty., 284 Neb. 109, 817
N.W.2d 250 (2012). See Neb. Rev. Stat. § 48-825 (Reissue 2010).
3
Neb. Rev. Stat. §§ 48-801 through 48-839 (Reissue 2010 & Cum. Supp.
2020).
4
§§ 48-819.01 and 48-824.
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FRATERNAL ORDER OF POLICE v. CITY OF YORK
Cite as 309 Neb. 359FOP alleged in its petition to the CIR that York committed a
prohibited practice in violation of § 48-824(1) and (2)(a), (e),
and (f ).
Section 48-824(1) states: “It is a prohibited practice for any
public employer, public employee, public employee organiza-
tion, or collective-bargaining agent to refuse to negotiate in
good faith with respect to mandatory topics of bargaining.” The
relevant provisions of § 48-824(2) provide:
It is a prohibited practice for any public employer or the
public employer’s negotiator to:
(a) Interfere with, restrain, or coerce employees in the
exercise of rights granted by the Industrial Relations Act;
....
(e) Refuse to negotiate collectively with representa-
tives of collective-bargaining agents as required by the
Industrial Relations Act;
(f ) Deny the rights accompanying certification or rec-
ognition granted by the Industrial Relations Act[.]
[4-6] The Industrial Relations Act requires parties to negoti-
ate only mandatory subjects of bargaining. 5 Mandatory sub-
jects of bargaining are set forth in § 48-818 and include the
scale of wages, hours of labor, or conditions of employment. 6
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. 7
[7] 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 man-
datorily bargainable even though there may be some minor
influence on educational policy or management prerogative. 8
5
Service Empl. Internat. v. Douglas Cty. Sch. Dist., 286 Neb. 755, 839
N.W.2d 290 (2013).
6
Id.7
Id.8
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FRATERNAL ORDER OF POLICE v. CITY OF YORK
Cite as 309 Neb. 359York acknowledges that the CIR has previously held that a
residency requirement that affects incumbent employees is a
condition of employment and, therefore, a mandatory subject
of bargaining. 9 The CIR again so decided below, and neither
party disputes that decision.
[8-10] As we explained in Douglas Cty. Health Ctr. Sec.
Union v. Douglas Cty., 10 the threshold question in determining
whether a public employer has committed a prohibited practice
is often whether a mandatory subject of bargaining was “cov-
ered by” the collective bargaining agreement. Under the “con-
tract coverage” rule, we first analyze as a simple question of
contract interpretation whether the mandatory topic of bargain-
ing was covered by the collective bargaining agreement. 11 We
do not analyze whether the parties have clearly and unmistak-
ably waived their rights to bargain over a mandatory subject of
bargaining unless we first find that the subject was not covered
by the collective bargaining agreement. 12
[11-13] If a topic is covered by the collective bargaining
agreement, then the parties have no further obligation to bar-
gain the issue. 13 A subject covered by a collective bargaining
agreement has already been fully negotiated, and the public
employer, by following the agreement’s provisions, does not
refuse to negotiate collectively with representatives of collec-
tive bargaining agents as required by the Industrial Relations
Act or to negotiate in good faith with respect to mandatory
topics of bargaining. 14 Further, if a topic is covered by a col-
lective bargaining agreement, then imposing upon an employee
9
City of Omaha v. Omaha Police Union Local No. 101, No. 388, 1981 WL
633366 (C.I.R. Jan. 27, 1981).
10
Douglas Cty. Health Ctr. Sec. Union v. Douglas Cty., supra note 2.
11
See id.
12
See id.
13
See id.
14
See id.
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FRATERNAL ORDER OF POLICE v. CITY OF YORK
Cite as 309 Neb. 359the agreement’s provisions in relation to that topic does not
interfere with, restrain, or coerce that employee in the exercise
of rights granted by the Industrial Relations Act or deny the
rights accompanying certification or recognition granted by
the Industrial Relations Act.
[14,15] Whether an agreement “covers” a mandatory subject
of bargaining is considered in light of the policies embodied
in the Industrial Relations Act. 15 While vague, all-inclusive
statements that employers “may do whatever they please” are
insufficient to establish that all topics are thereby covered by a
collective bargaining agreement, 16 neither does a collective bar-
gaining agreement have to specifically mention every particular
subject for it to be covered by the agreement. 17
[16] We must bear in mind the importance of finality to
collective bargaining during the term of an agreement and
accordingly reject any construction that treats an agreement as
but a starting point for constant negotiation over every public
employer action. 18 In determining whether a topic is covered
by an agreement, we consider whether the topic is “‘within
the compass’” of the terms of the agreement 19 or it is instead
wholly absent or contained in so broad and vague a reserva-
tion as to negate the requirement of bargaining in good faith
regarding subjects of mandatory bargaining. 20 “For a subject
to be deemed covered, there need not be an ‘exact congru-
ence’ between the matter in dispute and a provision of the
15
See Fed. Bur. of Prisons v. Fed. Labor Relations Auth., 654 F.3d 91 (D.C.
Cir. 2011).
16
Omaha Police Union Local 101 v. City of Omaha, No. 1121, 2007 WL
5114425 at *7 (C.I.R. Feb. 27, 2007).
17
See Wilkes-Barre Hosp. Company, LLC v. N.L.R.B., 857 F.3d 364 (D.C.
Cir. 2017).
18
Fed. Bur. of Prisons v. Fed. Labor Relations Auth., supra note 15.
19
Wilkes-Barre Hosp. Company, LLC v. N.L.R.B., supra note 17, 857 F.3d at
377.
20
See Omaha Police Union Local 101 v. City of Omaha, supra note 16.
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Cite as 309 Neb. 359agreement, so long as the agreement expressly or implic-
itly indicates the parties reached a negotiated agreement on
the subject.” 21
The CIR found that while a “residency requirement” was not
specifically mentioned in the agreements and there appeared
to be no provision for such a requirement for incumbent
­employees’ continued employment, sections 3.2(g) and 3.2( j)
of the agreements unambiguously granted to the Department
the right to adopt and implement promotion policies not in
direct conflict with the agreements. And the CIR found it was
within the compass of the agreements for the Department to
impose a residency requirement as part of the selection and
promotion of a police sergeant. The relevant provisions in
the agreements, the CIR explained, were sufficiently narrow
in scope that they did not negate the purpose of a collective
bargaining agreement.
[17,18] We agree. Section 3.2(g) specifically grants to the
Department the right to determine, establish, and implement
policies for promotion of employees, and section 3.2( j) gives
the Department the right to adopt, modify, change, enforce,
or discontinue any policies that are not in direct conflict
with any provisions of the agreements. If a contract’s terms
are clear, a court may not resort to the rules of construction
and must give the terms their plain and ordinary meaning as
a reasonable person would understand them. 22 A court must
consider a contract as a whole and, if possible, give effect to
every part of the contract. 23 The plain and ordinary meaning of
these provisions is that the Department decides the conditions
for promotion.
It would be contrary to the freedom of negotiations and the
finality of the negotiated agreements to impose, contrary to
21
Fed. Bur. of Prisons v. Fed. Labor Relations Auth., supra note 15, 654
F.3d at 94-95.
22
Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016).
23
Id.- 375 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
FRATERNAL ORDER OF POLICE v. CITY OF YORK
Cite as 309 Neb. 359their plain language, the requirement that they delineate what
specific types of conditions for promotion can be imposed
under the changing circumstances management would be try-
ing to address through its promotions decisions. While the
reservations in the agreements to determine the conditions of
promotion are broad, these provisions are not simply vague,
all-inclusive statements that the Department may do whatever
it pleases for all topics.
The Department decided that one of those conditions was
residency in York County. That condition was within the com-
pass of the agreements. Because the condition of residency for
Headlee’s promotion was covered by the collective bargaining
agreement, the Department did not commit any of the prohib-
ited practices alleged by FOP.
CONCLUSION
We affirm the decision of the CIR.
Affirmed.