State v. Nebraska Assn. of Pub. Employees ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. NEBRASKA ASSN. OF PUB. EMPLOYEES
Cite as 313 Neb. 259State of Nebraska, Department of Health and Human
Services, appellant, v. Nebraska Association of
Public Employees, Local #61 of the American
Federation of State, County, and
Municipal Employees, appellee.
___ N.W.2d ___
Filed January 20, 2023. No. S-22-119.
1. Arbitration and Award: Appeal and Error. In reviewing a decision
to vacate, modify, or confirm an arbitration award, an appellate court is
obligated to reach a conclusion independent of the trial court’s ruling as
to questions of law. However, the trial court’s factual findings will not
be set aside on appeal unless clearly erroneous.
2. Arbitration and Award. The purpose of arbitration is the quick reso-
lution of disputes and the avoidance of the expense and delay associ-
ated with litigation. In serving that purpose, a court gives strong defer-
ence to the arbitrator because when parties agree to arbitration, they
agree to accept whatever reasonable uncertainties might arise from
the process.
3. ____. Under Nebraska’s Uniform Arbitration Act, judicial review of an
arbitrator’s award is severely circumscribed.
4. Arbitration and Award: Proof. Nebraska’s Uniform Arbitration Act
provides very narrow grounds for vacating an arbitration award. Unless
a party proves an enumerated ground for vacating an arbitration award,
a court is required to confirm the award.
5. Arbitration and Award. Nebraska’s Uniform Arbitration Act is to be
construed so as to effectuate its general purpose to make uniform the
law of the states which have enacted the act.
6. Arbitration and Award: Contracts. In determining whether an arbi-
trator exceeded his or her powers, a court’s review is limited to
whether the awarded relief exceeded the limits of the arbitrator’s pow-
ers as defined by the contract, including explicitly referenced materials
or documents.
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Nebraska Supreme Court Advance Sheets
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STATE V. NEBRASKA ASSN. OF PUB. EMPLOYEES
Cite as 313 Neb. 2597. Arbitration and Award: Contracts: Employer and Employee. In the
absence of a contrary contract provision, the provisions of Nebraska’s
Uniform Arbitration Act control arbitration agreements between employ-
ers and employees or between their respective representatives.
8. Judgments: Parties. If a party desired other or different findings, those
findings should have been prepared and submitted, or at least the party
should have made a request and noted an objection if refused.
9. Parties: Appeal and Error. A party cannot be heard to complain of an
error that the party has been instrumental in bringing about.
10. Arbitration and Award. An arbitration award will not be vacated on
grounds immaterial to the award.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Douglas J. Peterson, Attorney General, and Grant K.
Dugdale, Special Assistant Attorney General, for appellant.
Dalton W. Tietjen, of Tietjen, Simon & Boyle, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
The State of Nebraska, Department of Health and Human
Services (DHHS), appeals from an order of the district court
denying DHHS’ petition and application to vacate an arbitra-
tion award resulting from a labor dispute. DHHS sought vaca-
tur of the award, averring the arbitrator exceeded his powers
under DHHS’ labor contract with the Nebraska Association of
Public Employees, Local #61 of the American Federation of
State, County, and Municipal Employees (NAPE). The district
court denied DHHS’ application and confirmed the award.
We affirm.
FACTUAL BACKGROUND
Grievance Procedure of Labor Contract.
The State of Nebraska and NAPE entered into a labor con-
tract in April 2019, which was in effect at all times relevant to
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STATE V. NEBRASKA ASSN. OF PUB. EMPLOYEES
Cite as 313 Neb. 259this appeal. DHHS is one of the state agencies bound by the
labor contract. Article 4 of the contract provides for a griev-
ance procedure whereby an aggrieved employee can raise alle-
gations of any violations of the labor contract by DHHS.
In relevant part, the employee first must file a written com-
plaint, which is required to contain a statement that indicates
the issue involved, the relief sought, the date the alleged viola-
tion took place if known, and the specific sections of the labor
contract involved. DHHS then has 15 workdays from the date
it received the grievance to confer with the grievant-employee
and issue a decision. Thereafter, the employee has the option
to appeal DHHS’ decision on the grievance and can elect to
submit the appeal to voluntary binding arbitration.
Under the labor contract, the arbitrator’s scope of review
“shall be to determine” whether the terms of the labor con-
tract have been violated and whether DHHS’ action was taken
in good faith and for cause. The arbitrator must decide the
grievance based on the issues presented in the employee’s
written complaint. The arbitrator may interpret relevant pro-
visions of the labor contract and apply them to the particu-
lar case. However, the arbitrator has no authority to add to,
subtract from, or in any way modify the terms of the labor
contract.
The labor contract also provides that the administrator of
the Department of Administrative Services’ employee relations
division can set various time limitations for the arbitration
process, including the period after a hearing within which an
arbitrator must enter his or her decision. Otherwise, the deci-
sion of the arbitrator must be made within 60 calendar days of
the conclusion of the hearing. The arbitrator’s decision must
be in writing and include “findings of fact and conclusions
of law.” “The findings of fact shall consist of a concise state-
ment of the conclusions upon each contested issue of fact,”
and “[t]he decision of the arbitrator shall be final and may not
be appealed.”
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STATE V. NEBRASKA ASSN. OF PUB. EMPLOYEES
Cite as 313 Neb. 259Labor Dispute.
The basic facts surrounding the grievance were not in dis-
pute at arbitration or on appeal. In sum, the employees, repre-
sented by NAPE, alleged that DHHS changed the dress code
in violation of the labor contract.
DHHS’ longstanding dress code was issued in October
2017. The 2017 dress code provided that employees’ clothing
must be consistent with the standards for a professional work
environment and must be appropriate to the type of work being
performed in accordance with the employee’s particular work
area. Under the 2017 dress code, administrators and manag-
ers were responsible for defining what is “appropriate” for
the particular work areas under their direction. The possible
definitions of “appropriate attire” included casual, business
casual, or another style appropriate for the type of work the
employee performed and the extent of the employee’s contact
with the public.
In December 2019, DHHS advised its employees of a new
dress code that would take effect in 2020. The 2020 dress
code included two substantive changes relevant to the parties’
dispute: (1) it removed the discretion provided to administra-
tors and managers to define appropriate attire, and (2) the
possible definitions of appropriate attire no longer included
“casual,” requiring at least business casual attire. In so doing,
the 2020 dress code explicitly declared blue jeans and denim,
T-shirts and sweatshirts, and athletic shoes and gym shoes
to be inappropriate attire. However, employees could wear
these otherwise inappropriate clothing items on DHHS’ newly
adopted “Casual Fridays.” The 2020 dress code was initially
to go into effect beginning January 1, 2020, but for reasons
not included in the record on appeal, the effective date was
delayed to February 1.
On January 31, 2020, DHHS notified its employees that the
2020 dress code would not be going into effect on February
1 and that the 2017 dress code would remain in place. The
record on appeal is devoid of the circumstances leading to
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. NEBRASKA ASSN. OF PUB. EMPLOYEES
Cite as 313 Neb. 259this decision. On Friday, February 7, certain employees were
informed by their supervisors that beginning on Monday,
February 10, they would be required to wear business casual
attire Monday through Thursday. These supervisors exercised
their discretion under the still-in-effect 2017 dress code and
redefined what is “appropriate” for the particular work areas
under their direction. In particular, this February “dress code”
provided that these affected employees would no longer be
able to wear jeans, T-shirts, or sweatshirts as they had been
previously. Although our review of the record shows that
NAPE does not dispute that DHHS did not adopt a new depart-
mentwide dress code, consistent with the record and for the
sake of clarity, we refer to the newly defined “appropriate
attire” for the affected employees as the “February dress code.”
In response, the affected employees filed a grievance.
Employee Grievance.
The grievance alleged that the February dress code violated
articles 1.4 and 1.5 of the labor contract. Article 1.4 requires
DHHS, “prior to making any change in terms and conditions
of employment which are mandatory subjects of bargaining
and not otherwise covered by this Contract, to meet and bar-
gain with [NAPE] in an attempt to reach an agreement.” The
grievance alleged that DHHS’ implementation of the February
dress code violated article 1.4 because the changed definition
of appropriate attire constituted a change in the terms or condi-
tions of employment, which was a mandatory subject of bar-
gaining, and because DHHS had not met to bargain with NAPE
before implementing the February dress code.
Article 1.5 of the labor contract governs work rules, which
“are defined as and limited to rules promulgated by [DHHS]
within its discretion which regulate the job related personal
conduct of employees.” The article requires that “[n]ewly
established work rules or amendments to existing work rules
shall be reduced to writing and furnished to [NAPE] at least
seven calendar days prior to the effective date of the rule.”
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STATE V. NEBRASKA ASSN. OF PUB. EMPLOYEES
Cite as 313 Neb. 259The article also requires that DHHS “establish or amend work
rules in a reasonable manner.”
The grievance alleged that DHHS violated article 1.5
because the February dress code was neither reduced to writ-
ing nor furnished to NAPE 7 days in advance of its effective
date. The grievance also alleged that DHHS violated article
1.5 because the February dress code was not established or
amended in a reasonable manner. The grievance charged that
the new requirements of the February dress code were unrea-
sonable for two reasons: First, the February dress code was
unreasonable due to the cost imposed on the affected employ-
ees by the change in the definition of appropriate attire, and
second, the grievance contended that the February dress code
was unreasonable because it did not take into account the type
of work the affected employees performed, nor the extent of
the employees’ contact with the public. Specifically, the dress
code was unreasonable because there was no need for the
affected employees to be in business casual attire, since those
employees do not interact with the general public. The griev-
ance sought rescission of the February dress code to allow
either the affected employees to be treated as they were before
the change or DHHS to meet and bargain with NAPE.
DHHS’ Initial Decision.
DHHS issued its initial decision on the grievance in March
2020, after the parties agreed to an extension for DHHS to
respond. In its decision on the grievance, DHHS acknowl-
edged the arguments raised in the grievance, but concluded
that neither article 1.4 nor article 1.5 applied to the February
dress code. DHHS determined that article 1.4 did not apply
because the change in the definition of appropriate attire did
not constitute a change in the terms and conditions of employ-
ment. Similarly, DHHS determined that article 1.5 did not
apply because the February dress code was not a newly estab-
lished or amended work rule. DHHS maintained that even if
article 1.5 did apply, the change was reasonable and no viola-
tion occurred.
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STATE V. NEBRASKA ASSN. OF PUB. EMPLOYEES
Cite as 313 Neb. 259DHHS viewed the February dress code exclusively as an
exercise of supervisor discretion under the 2017 dress code. It
was DHHS’ position that article 3.12 applied to the February
dress code. Article 3.12 provides that management has the
“right to adopt, modify, change, enforce, or discontinue any
existing rules, regulations, procedures or policies.” DHHS cat-
egorized the grievance as an impermissible intrusion on that
right. NAPE appealed DHHS’ initial decision.
Arbitration Hearing.
NAPE exercised its election to submit the grievance to
voluntary binding arbitration. The parties mutually selected
an arbitrator according to a mutually agreed upon process.
The arbitrator delivered the award and his written decision on
October 9, 2020, 50 days after the conclusion of the hearings.
The arbitrator’s decision identified the issues presented by the
grievance as follows: (1) DHHS failed to bargain on a manda-
tory subject of bargaining prior to initiating the February dress
code, and (2) the February dress code was unreasonable and
too expensive. The arbitrator then listed the witnesses who
testified and the exhibits received at the arbitration proceed-
ing. The arbitrator proceeded to recount the background events
leading to the grievance and the parties’ respective positions
before stating his opinion. The decision concluded with the
arbitrator’s award.
In his award, the arbitrator found that DHHS violated arti-
cle 1.4 by (1) failing to properly advise NAPE of a proposed
change on subjects of mandated negotiation and bargaining
and (2) failing to negotiate and bargain on those proposed
changes. The arbitrator also found that DHHS violated article
1.5 by (1) failing to advise NAPE at least 7 calendar days in
advance of the effective date of the proposed establishment
of a newly established work rule or amendment to an exist-
ing work rule and (2) its “[a]rbitrary, capricious, unreason-
able, and unfair implementation” of a newly established work
rule or amendment to an existing work rule. The arbitrator
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. NEBRASKA ASSN. OF PUB. EMPLOYEES
Cite as 313 Neb. 259directed DHHS to reactivate the 2017 dress code within 30
days, allowing employees who do not interact with the pub-
lic to wear casual attire, specifically jeans. At the end of the
award, the arbitrator included the following: “The Arbitrator
will retain jurisdiction over this award for an additional
thirty (30) days after its implementation[.] The parties are
encouraged to contact the Arbitrator, jointly, for questions
having to do with interpretation or implementation of this
award.” The parties did not discuss jointly submitting ques-
tions to the arbitrator.
DHHS’ Application to Vacate Award.
On November 10, 2020, 32 days after the award’s delivery,
DHHS filed an application with the district court to vacate the
arbitrator’s award on the grounds that the arbitrator “exceeded
their powers” under Neb. Rev. Stat. § 25-2613(a)(3) (Reissue
2016). DHHS argued that the arbitrator exceeded his powers
in two respects relevant to this appeal by (1) including insuf-
ficient findings of fact and conclusions of law in his decision in
violation of article 4.7.11 of the labor agreement and (2) add-
ing a substantive requirement to article 1.5 of the labor contract
in violation of article 4.7.9.
Article 4.7.11 of the labor contract provides that an arbitra-
tor’s decision “shall include findings of fact and conclusions
of law” and that the findings of fact “shall consist of a concise
statement of the conclusions upon each contested issue of
fact.” DHHS contended that nothing in the arbitrator’s deci-
sion could be “minimally considered” findings of fact and
conclusions of law and that his decision failed to include a
concise statement of his conclusions on each contested issue
of fact.
The district court disagreed. The court reasoned that although
the arbitrator did not expressly label each finding of fact, the
arbitrator’s decision nevertheless included findings of fact.
For example, the court found that the arbitrator made findings
of fact, including that the 2017 dress code included jeans as
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STATE V. NEBRASKA ASSN. OF PUB. EMPLOYEES
Cite as 313 Neb. 259acceptable work attire, but the February dress code proscribed
jeans; DHHS advised its employees that the 2017 dress code
was reinstated; DHHS failed to provide 7 days’ advance notice
of the February dress code; DHHS failed to reduce the pro-
posed change to writing as mandated by the labor contract;
DHHS’ rationale for disallowing jeans in the February dress
code was to ensure the uniformity of dress and professionalism
at the workplace; unaffected employees were allowed to wear
jeans despite performing the same work, at the same location,
and on the same shift as affected employees; the February
dress code imposed different and more onerous standards on
similarly situated employees; and the February dress code
unfairly and unreasonably increased the cost and burden for
affected employees but not for those unaffected.
The court also found that the arbitrator included concise
statements of his conclusions on each contested issue of fact.
In particular, the arbitrator stated he agreed with NAPE that the
February dress code was ipso facto unreasonable because the
dress code was not a select way of achieving either uniformity
or fairness, which caused DHHS’ implementation, or execu-
tion, of the dress code to be arbitrary and capricious. The court
concluded that the arbitrator’s decision sufficiently complied
with article 4.7.11.
DHHS’ second contention was that the arbitrator added a
substantive limitation to article 1.5 when he determined that
the February dress code was arbitrary, capricious, unreason-
able, and unfair. The district court agreed with DHHS insofar
as article 1.5 provides only procedural limitations, but found
that the arbitrator did not add a substantive limitation as DHHS
contended. The court disagreed with DHHS’ characterization
that the arbitrator found the February dress code itself was
arbitrary, capricious, unreasonable, and unfair. Instead, the
court found that the arbitrator had found the manner in which
the February dress code was implemented was arbitrary, capri-
cious, unreasonable, and unfair.
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STATE V. NEBRASKA ASSN. OF PUB. EMPLOYEES
Cite as 313 Neb. 259The court reasoned that because article 1.5 provides that
DHHS can “only establish or amend work rules in a reason-
able manner,” the arbitrator did not add a substantive limitation
when he concluded that the February dress code was ipso facto
unreasonable due to DHHS’ arbitrary, capricious, unreason-
able, and unfair implementation of the dress code. The court
concluded that because the manner in which work rules are
established or amended could be interpreted to include the
implementation of the dress code, the arbitrator’s conclusion
was a permissible application of article 1.5. The district court
denied DHHS’ petition and confirmed the arbitration award.
DHHS appeals.
ASSIGNMENTS OF ERROR
DHHS assigns, restated, that the district court erred in
concluding that the arbitrator did not exceed his powers by
(1) finding that the arbitration decision included enough find-
ings of fact and conclusions of law to comply with the labor
contract and (2) finding that the arbitrator did not add to or
modify the labor contract and therefore the arbitrator did not
exceed his powers.
STANDARD OF REVIEW
[1] In reviewing a decision to vacate, modify, or confirm
an arbitration award, an appellate court is obligated to reach
a conclusion independent of the trial court’s ruling as to ques-
tions of law. 1 However, the trial court’s factual findings will
not be set aside on appeal unless clearly erroneous. 2
ANALYSIS
[2] The purpose of arbitration is the quick resolution of dis-
putes and the avoidance of the expense and delay associated
1
Signal 88 v. Lyconic, 310 Neb. 824, 969 N.W.2d 651 (2022).
2
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STATE V. NEBRASKA ASSN. OF PUB. EMPLOYEES
Cite as 313 Neb. 259with litigation. 3 In serving that purpose, a court gives strong
deference to the arbitrator because when parties agree to arbi-
tration, they agree to accept whatever reasonable uncertain-
ties might arise from the process. 4 Courts do not sit to hear
claims of factual or legal error by an arbitrator as an appellate
court does in reviewing decisions of lower courts. 5 A court
may not overrule an arbitrator’s decision simply because the
court believes that its own interpretation of the contract, or
the facts, would be the better one. 6 Arbitration is far different
from adjudication. 7
[3,4] Under Nebraska’s Uniform Arbitration Act (NUAA), 8
judicial review of an arbitrator’s award is severely circum-
scribed. 9 When parties agree to have an arbitrator resolve a
dispute, the law provides little room for a court to undo the
arbitrator’s decision. 10 Section 25-2613(a) provides very nar-
row grounds for vacating an arbitration award, and unless
DHHS proves an enumerated ground for vacating the award,
the district court is required to confirm the award pursuant to
§ 25-2613(d). Both of DHHS’ assignments of error argue that
the district court failed to find that the arbitrator exceeded his
powers under § 25-2613(a)(3).
3
Jones v. Summit Ltd. Partnership Five, 262 Neb. 793, 635 N.W.2d 267(2001).
4
Signal 88 v. Lyconic, supra note 1.
5
City of Omaha v. Professional Firefighters Assn., 309 Neb. 918, 963
N.W.2d 1 (2021).
6
Id.7
Signal 88 v. Lyconic, supra note 1.
8
See Neb. Rev. Stat. §§ 25-2601 to 25-2622 (Reissue 2016 & Cum. Supp.
2022).
9
State v. Henderson, 277 Neb. 240, 762 N.W.2d 1 (2009), disapproved on
other grounds, Seldin v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d
768 (2020).
10
City of Omaha v. Professional Firefighters Assn., supra note 5.
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STATE V. NEBRASKA ASSN. OF PUB. EMPLOYEES
Cite as 313 Neb. 259The parties agree that the standard for determining whether
arbitrators exceeded their powers is governed by our decision
in City of Omaha v. Professional Firefighters Assn. 11 There, we
stated that in deciding whether an arbitrator exceeded his or
her powers, the focus is, appropriately, on whether the arbitra-
tor acted within the bounds of contractual authority because
it is the parties’ agreement from which the arbitrator’s power
derives. A court’s task is limited to deciding whether the arbi-
trator (even arguably) adhered to contract interpretation in
his or her decision. 12 With this standard in mind, we turn to
DHHS’ two assignments of error.
Findings of Fact and Conclusions of Law.
DHHS first assigns that the district court erred in finding
that the arbitrator did not exceed his powers by delivering a
decision that failed to include any, or sufficient, findings of
fact and conclusions of law and failed to include a concise
statement of his conclusions upon each contested issue of fact.
It is DHHS’ contention that arbitrators can exceed their powers
in two ways. First, as related to the merits of an award, when
the award exceeds the limitations of the arbitrator’s powers
placed upon him or her by the parties’ arbitration agree-
ment, and second, when the arbitrator fails to satisfy require-
ments imposed by the parties’ negotiated agreement. DHHS
argues that because article 4.7.9 of the labor contract imposed
requirements as to the type of decision the arbitrator was to
deliver, in failing to satisfy those requirements, the arbitra-
tor exceeded his powers and the district court was required to
vacate the award.
In support of its argument that an arbitrator exceeds his
or her powers by failing to satisfy the parties’ contractual
requirements, DHHS relies exclusively on a Ninth Circuit
11
Id.12
See id.- 271 -
Nebraska Supreme Court Advance Sheets
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STATE V. NEBRASKA ASSN. OF PUB. EMPLOYEES
Cite as 313 Neb. 259Court of Appeals opinion interpreting the Federal Arbitration
Act (FAA). 13 In Western Employers Ins. v. Jefferies & Co., the
Ninth Circuit remanded an arbitration award with directions to
vacate it for failing to include findings of fact and conclusions
of law when the parties specifically negotiated for an award
with findings of fact and conclusions of law, the party seek-
ing vacatur made numerous requests of the arbitration panel
for such findings and conclusions, and the panel expressly
refused to issue anything other than a standard award declaring
all issues were resolved in favor of the other party. We note
that our review reveals that the Ninth Circuit may have sub-
sequently and implicitly abrogated Western Employers Ins. v.
Jefferies & Co. when it held that despite a requirement in the
parties’ arbitration agreement, the arbitrators’ failure to issue a
written decision with their award, alone, did not support vaca-
tur under the limited grounds enumerated in the FAA. 14
DHHS classifies the arbitrator’s decision as a “reasoned
award” rather than a decision with findings of fact and conclu-
sions of law. DHHS, relying on a decision of the 11th Circuit
Court of Appeals, 15 asserts that there are three principal types
of arbitration awards: (1) a standard or bare award, which
announces only in whose favor the arbitrator found; (2) a rea-
soned award; and (3) an award that includes findings of fact
and conclusions of law. The distinction between these types of
arbitration awards under the FAA, first articulated in an unpub-
lished opinion from the northern district of Illinois, has been
embraced by every U.S. Circuit Court of Appeals, including the
13
See Western Employers Ins. v. Jefferies & Co., 958 F.2d 258 (9th Cir.
1992). See, also, 9 U.S.C. § 10 (2018) (“where the arbitrators exceeded
their powers, or so imperfectly executed them that a mutual, final, and
definite award upon the subject matter submitted was not made”).
14
See Biller v. Toyota Motor Corp., 668 F.3d 655 (9th Cir. 2012) (citing
Bosack v. Soward, 586 F.3d 1096 (9th Cir. 2009)).
15
See Cat Charter, LLC v. Schurtenberger, 646 F.3d 836 (11th Cir. 2011).
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Cite as 313 Neb. 25911th Circuit. 16 In that case, the court noted that these awards
are on a spectrum of increasingly reasoned awards. A “standard
award” is the option least involving reasoning, and “findings of
fact and conclusions of law” is the option most involving rea-
soning. 17 “Logically,” the court rationalized, a reasoned award
is “something short of findings and conclusions but more than
a simple result.” 18 Notably, that same court recognized that
“it is very strange to assert that an arbitrator has exceeded his
powers by not doing enough,” 19 as DHHS asserts here.
We have never considered whether a reasoned award is
recognized under Nebraska law. The term “reasoned award”
is not within the statutory language of the NUAA, although
various Nebraska statutes have mandated requirements for
findings of fact and conclusions of law. 20 In those contexts, we
have stated that the principal motivating force is “‘the need
of the reviewing court for a clear view of the basis’” for
the decision. 21 We have held that an administrative order is
16
ARCH Development Corp. v. Biomet, Inc., No. 02 C 9013, 2003 WL
21697742 (N.D. Ill. July 30, 2003). See Holden v. Deloitte and Touche
LLP, 390 F. Supp. 2d 752 (N.D. Ill. 2005) (citing ARCH Development
Corp. v. Biomet, Inc., supra note 16). See, also, Sarofim v. Trust Company
of the West, 440 F.3d 213 (5th Cir. 2006) (citing Holden v. Deloitte and
Touche LLP, supra note 16); Cat Charter, LLC v. Schurtenberger, supranote 15 (citing Sarofim v. Trust Company of the West, supra note 16); Rain
CII Carbon, LLC v. ConocoPhillips Co., 674 F.3d 469 (5th Cir. 2012)
(citing Sarofim v. Trust Company of the West, supra note 16, and Cat
Charter, LLC v. Schurtenberger, supra note 15); Leeward Construction v.
American Univ. of Antigua, 826 F.3d 634 (2d Cir. 2016) (citing Rain CII
Carbon, LLC v. ConocoPhillips Co., supra note 16); Sabre GLBL, Inc. v.
Shan, 779 F. Appx. 843 (3d Cir. 2019) (citing Leeward Construction v.
American Univ. of Antigua, supra note 16).
17
ARCH Development Corp. v. Biomet, Inc., supra note 16.
18
Id. at *4.
19
Id. at *4 n.4. See Holden v. Deloitte and Touche LLP, supra note 16.
20
See, Neb. Rev. Stat. § 77-5018(1) (Reissue 2018); Neb. Rev. Stat. § 84-915(Reissue 2014).
21
County of Lancaster v. State Board of Equalization & Assessment, 181
Neb. 738, 741, 150 N.W.2d 886, 888 (1967).
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Cite as 313 Neb. 259arbitrary when it contains findings that “fail to disclose a clear
basis” for the order. 22 Even then, we have recognized that
administrative findings may be express or implied. 23
However, in contrast to those cases, courts do not sit to hear
claims of factual or legal error by an arbitrator. 24 A court may
not overrule an arbitrator’s decision simply because the court
believes that its own interpretation of the contract, or of the
facts, would be the better one. 25 As has been mentioned, an
arbitrator’s award should be confirmed as long as it even argu-
ably construes the contract.
[5] The NUAA is to be construed so as to effectuate
its general purpose to make uniform the law of the states
which have enacted the Uniform Arbitration Act. 26 When other
states have interpreted their enacted versions of the Uniform
Arbitration Act, they have taken a narrower approach in
determining whether arbitrators exceeded their powers. Other
states have generally held that arbitrators exceed their powers
only when an award addresses issues or grants relief outside
the scope of the governing contract. 27 In essence, because an
22
County of Box Butte v. State Board of Equalization & Assessment, 181
Neb. 742, 744, 150 N.W.2d 892, 893 (1967).
23
Richardson v. City of Omaha, 214 Neb. 97, 333 N.W.2d 656 (1983) (citing
County of Lancaster v. State Board of Equalization & Assessment, supra
note 21).
24
City of Omaha v. Professional Firefighters Assn., supra note 5.
25
Id.26
§ 25-2622.
27
See, e.g., State Farm Mut. Auto. Ins. v. Cabs, Inc., 751 P.2d 61 (Colo.
1988); Poire v. Kaplan, 491 A.2d 529 (D.C. 1985); Brennan v. Stewarts’
Pharmacies, Ltd., 59 Haw. 207, 579 P.2d 673 (1978); 3D Enterprises v.
Lexington-Fayette Urban, 134 S.W.3d 558 (Ky. 2004); Plymouth-Carver
School Dist. v. J. Farmer, 407 Mass. 1006, 553 N.E.2d 1284 (1990);
Health Plan of Nevada v. Rainbow Med., 120 Nev. 689, 100 P.3d 172(2004); Boyte v. Dickson, 62 N.C. App. 682, 303 S.E.2d 418 (1983);
Batten v. Howell, 300 S.C. 545, 389 S.E.2d 170 (S.C. App. 1990); Arnold
v. Morgan Keegan & Co., Inc., 914 S.W.2d 445 (Tenn. 1996). See, also,
e.g., Progressive Data v. Jefferson Randolph, 275 Ga. 420, 568 S.E.2d 474(2002); Anderson v. Banks, 37 A.3d 915 (Me. 2012).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. NEBRASKA ASSN. OF PUB. EMPLOYEES
Cite as 313 Neb. 259arbitrator is charged with resolving the parties’ dispute before
him or her by interpreting the contractual rights of the parties,
an arbitrator can only exceed his or her powers by making an
award that violates the negotiated rights of the parties with
respect to one another. Because a court does not revisit an
arbitrator’s factual findings or conclusions of law, a court’s
review is of the arbitrator’s award, not the arbitrator’s reason-
ing, explanation, decision, or the presence thereof.
This narrow interpretation is supported by looking at the
grounds on which a court can modify or correct an award
under the NUAA. Each ground for modification or correction
is limited to the form of the award and precludes review of its
merits:
(1) There was an evident miscalculation of figures or
an evident mistake in the description of any person, thing
or property referred to in the award;
(2) The arbitrators have awarded upon a matter not
submitted to them and the award may be corrected with-
out affecting the merits of the decision upon the issues
submitted; or
(3) The award is imperfect in a matter of form, not
affecting the merits of the controversy. 28
This section suggests that grounds as to form, just as grounds
of mistake of law or mistake of fact, do not warrant the vaca-
tur of an award. 29 We are persuaded by this approach taken by
other states.
[6] We hold that in determining whether an arbitrator
exceeded his or her powers, a court’s review is limited to
whether the awarded relief exceeded the limits of the arbitra-
tor’s powers as defined by the contract, including explicitly
referenced materials or documents, and does not include, as
DHHS asserts, whether the arbitrator somehow failed to meet
a minimum requirement. As the Supreme Judicial Court of
Massachusetts has aptly stated:
28
§ 25-2614(a) (emphasis supplied).
29
Id.
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Cite as 313 Neb. 259“The question of interpretation of the agreement is
for the arbitrator and mere ambiguity in the [arbitrator’s]
opinion is not a reason for refusing to enforce the award,
even when it permits the inference of a want of author-
ity.” [Although] an arbitrator may not award damages
beyond a limit clearly established by the contract, “the
limiting boundaries . . . must be set forth with clarity,
and the limiting words must be plain. If there is room
for doubt or interpretation on the question, then the issue
properly lies within the broad authority conferred upon
arbitrators of civil disputes.” . . . The interpretation of the
contract was for the arbitrator. 30
In the present case, under the labor contract, the arbitra-
tor’s scope of review was to determine whether the terms
of the labor contract had been violated. In his award, the
arbitrator determined that DHHS violated articles 1.4 and
1.5 based on the issues presented in the original employee
complaint. DHHS does not challenge the remedy of the arbi-
trator’s award. Although the parties may have contracted for
a decision that included findings of fact and conclusions of
law, it cannot be said that the arbitrator exceeded his pow-
ers or materially erred by failing to include sufficient detail
in his accompanying decision. The award reflects that the
arbitrator acted within the bounds of his contractual author-
ity. As we previously stated, arbitration is far different from
adjudication, and when parties agree to arbitration, they agree
to accept whatever reasonable uncertainties might arise from
the process.
We also note that DHHS had a number of remedies avail-
able to it other than filing an application to vacate the award
with the district court. First, we see no reason why DHHS
and NAPE could not have jointly submitted questions to
the arbitrator as he invited. The labor contract does not pro-
vide express language that would preclude an arbitrator from
30
Plymouth-Carver School Dist. v. J. Farmer, supra note 27, 407 Mass. at
1007-08, 553 N.E.2d at 1286.
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STATE V. NEBRASKA ASSN. OF PUB. EMPLOYEES
Cite as 313 Neb. 259retaining authority or correcting or expanding on his or her
award. It provides only a modifiable default rule when an
arbitration decision needs to be delivered. DHHS asserts that
the arbitrator did not retain any authority to include findings
of fact and conclusions of law in his award after the award’s
delivery. But decisions of other courts suggest that the arbitra-
tor did retain such authority. 31 Additionally, we see nothing in
the labor contract that would prevent the parties from agreeing
to modify the terms of the labor contract as they did when
NAPE granted DHHS’ request for an extension of time to
issue its initial decision beyond the 15 days expressly provided
by the labor contract. 32
[7] Second, the NUAA “applies to arbitration agreements
between employers and employees or between their respective
representatives.” 33 Although contract provisions agreed to by
the parties control over contrary provisions of the NUAA, 34
in the absence of a contrary contract provision, the provisions
of the NUAA control. Relevant to DHHS’ circumstances, and
unlike the FAA, the NUAA expressly provides a remedy for
clarifying an award. 35 Section 25-2610 provides:
On application of a party[,] . . . the arbitrators may
modify or correct the award . . . for the purpose of clari-
fying the award. The application shall be made within
twenty days after delivery of the award to the appli-
cant. Written notice thereof shall be given forthwith to
the opposing party, stating he or she must serve his or
her objections thereto, if any, within ten days from the
notice. The award so modified or corrected is subject to
31
See Hartford Steam v. Underwriters at Lloyd’s, 271 Conn. 474, 857 A.2d
893 (2004) (discussing cases).
32
See Pennfield Oil Co. v. Winstrom, 272 Neb. 219, 720 N.W.2d 886 (2006).
33
§ 25-2602.01(c).
34
§ 25-2602.01(d).
35
See § 25-2610.
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313 Nebraska Reports
STATE V. NEBRASKA ASSN. OF PUB. EMPLOYEES
Cite as 313 Neb. 259[confirmation, vacatur, and modification or correction by
a court as provided by other sections].
Under § 25-2610, DHHS had 20 days from the award’s deliv-
ery to apply to the arbitrator for clarification of his award.
DHHS made no such application. Section 25-2610 also pro-
vides that a court can submit an award back to an arbitrator
when an application to the court is pending for confirmation,
vacatur, or modification or correction. In this case, the district
court did not err when it determined that clarification from the
arbitrator was unnecessary.
[8,9] Finally, we note that it has long been the law of this
State that in the judicial context, if a party desires a special
finding of fact, the proper time to make such request is at the
time of the submission of the case. 36 A party is not permit-
ted to wait until the return of a verdict and then insist upon a
different finding. 37 If a party desired other or different find-
ings, those findings should have been prepared and submitted,
or at least the party should have made a request and noted
an objection if refused. 38 This court has long regarded it a
sound principle, as well as a salutary one, that a party can-
not be heard to complain of an error that the party has been
instrumental in bringing about. 39 In this case, DHHS did not
36
Everson v. Graves, 26 Neb. 262, 41 N.W. 994 (1889). See, also, Neb. Rev.
Stat. §§ 25-1121 (Cum. Supp. 2022) and 25-1122 and 25-1127 (Reissue
2016).
37
Everson v. Graves, supra note 36.
38
See, In re Arbitration of Johnson, 87 Neb. 375, 127 N.W. 133 (1910);
Town v. Missouri P. R. Co., 50 Neb. 768, 70 N.W. 402 (1897).
39
Ballantyne v. Parriott, 172 Neb. 215, 109 N.W.2d 164 (1961); Missouri
P. R. Co. v. Fox, 60 Neb. 531, 83 N.W. 744 (1900), overruled on other
grounds, Callahan v. Prewitt, 143 Neb. 787, 13 N.W.2d 660 (1944). See,
Scheele v. Rains, 292 Neb. 974, 874 N.W.2d 867 (2016); Evergreen Farms
v. First Nat. Bank & Trust, 250 Neb. 860, 553 N.W.2d 728 (1996); Keating
v. Klemish, 214 Neb. 458, 334 N.W.2d 440 (1983); Haumont v. Alexander,
190 Neb. 637, 211 N.W.2d 119 (1973); Grand Lodge v. Brand, 29 Neb.
644, 46 N.W. 95 (1890).
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STATE V. NEBRASKA ASSN. OF PUB. EMPLOYEES
Cite as 313 Neb. 259prepare and submit any proposed findings to the arbitrator,
made no specific request of the arbitrator for findings, and
did not note an objection. Instead, DHHS filed an application
to vacate the arbitrator’s award 32 days after he delivered it.
Whatever insufficiency exists in the findings of fact and con-
clusions of law, 40 DHHS was instrumental in bringing about
that insufficiency.
Adding Substantive Requirement to Labor Contract.
DHHS next assigns that the district court erred by finding
that the arbitrator did not add to or modify the labor contract
and concluding that the arbitrator did not exceed his powers.
DHHS argues that the arbitrator violated article 4.7.9 in excess
of his powers in making his award. That article limits the
arbitrator’s powers by providing that “the arbitrator shall have
no authority to add to, subtract from, or in any way modify
the terms of this Contract or any agreements made supple-
mentary hereto.”
DHHS contends that the arbitrator added a substantive
requirement to article 1.5 of the labor contract because the arti-
cle contains only procedural requirements. The relevant provi-
sion of article 1.5 provides that “[t]he employer agrees to only
establish or amend work rules in a reasonable manner.” At the
arbitration hearing, NAPE argued that when DHHS unilaterally
implemented a rule that required negotiation under article 1.4,
it simultaneously violated article 1.5 because any policy that
is random, arbitrary, and capricious in its implementation is,
by its very nature, unreasonable. In his award, the arbitrator
concluded that DHHS violated article 1.5 in its “[a]rbitrary,
capricious, unreasonable, and unfair implementation of [a] new
rule or amendment.”
40
Compare Western Employers Ins. v. Jefferies & Co., supra note 13, with
Biller v. Toyota Motor Corp., supra note 14. See, e.g., Halim v. Great
Gatsby’s Auction Gallery, Inc., 516 F.3d 557 (7th Cir. 2008); Holden v.
Deloitte and Touche LLP, supra note 16 (citing ARCH Development Corp.
v. Biomet, Inc., supra note 16).
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STATE V. NEBRASKA ASSN. OF PUB. EMPLOYEES
Cite as 313 Neb. 259As we have noted, our task is limited to deciding whether
the arbitrator even arguably adhered to contract interpretation
in his decision. The labor contract mandates that DHHS only
establish or amend work rules in a reasonable manner. The word
“manner” can be defined as a “mode of procedure,” 41 while
something “[n]ot guided by reason” is termed “unreasonable.” 42
Accordingly, it is an arguable interpretation of article 1.5
that the article requires DHHS’ procedures in establishing or
amending work rules to be guided by reason.
Implicit in the arbitrator’s decision is that the February
dress code constituted a work rule and a term and condition
of employment subject to mandatory negotiation and bargain-
ing with NAPE. It is an arguable interpretation that redefining
“appropriate attire” for the affected employees could serve
as both. It is also an arguable interpretation that by failing
to negotiate and bargain with NAPE in violation of article
1.4, DHHS’ procedure, or implementation, was not guided
by reason. Likewise, since article 1.5 requires that a rule be
reduced to writing and furnished to NAPE at least 7 calendar
days before its effective date, by failing to reduce the February
dress code to writing and furnishing it to NAPE, DHHS’
procedure could arguably be interpreted as not being guided
by reason.
[10] Moreover, DHHS’ second assignment of error is imma-
terial to the award, 43 and an arbitration award will not be
vacated on grounds immaterial to the award. Under the labor
contract, the arbitrator’s scope of review was to determine
whether the terms of the labor contract had been violated
and whether DHHS’ action was taken in good faith and for
cause based on the issues presented in the employees’ written
41
“Manner,” Merriam-Webster.com, https://www.merriam-webster.com/
dictionary/manner (last visited Jan. 10, 2023).
42
Black’s Law Dictionary 1851 (11th ed. 2019).
43
See, e.g., Detroit Auto. Inter-Ins. Exch. v. Gavin, 416 Mich. 407, 331
N.W.2d 418 (1982).
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STATE V. NEBRASKA ASSN. OF PUB. EMPLOYEES
Cite as 313 Neb. 259complaint. The grievance alleged a violation of article 1.5,
which required DHHS to provide NAPE with written notice
at least 7 calendar days prior to the effective date of any
newly established or amended work rules. Because the arbitra-
tor found that DHHS violated article 1.5 on this ground, it is
immaterial whether the arbitrator added a substantive require-
ment to article 1.5 and we need not consider DHHS’ second
assignment. The arbitrator was well within his powers in fash-
ioning his remedy. 44
CONCLUSION
The district court did not err by denying DHHS’ application
to vacate the arbitration award and by confirming the arbitra-
tor’s award.
Affirmed.
44
See, e.g., M.K. Weeden Constr. v. Simbeck & Associates, 409 Mont. 305,
514 P.3d 401 (2022); Wells v. Wells-Wilson, 360 Ga. App. 646, 860 S.E.2d
185 (2021); Treadwell v. Village Homes of Colo., Inc., 222 P.3d 398 (Colo.
App. 2009); Vermont Built, Inc. v. Krolick, 185 Vt. 139, 969 A.2d 80(2008); Progressive Data v. Jefferson Randolph, supra note 27. See, also,
§ 25-2622.