City of Omaha v. Professional Firefighters Assn. , 309 Neb. 918 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/24/2021 08:11 AM CDT
- 918 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918City of Omaha, appellant, v. Professional
Firefighters Association of Omaha,
Local 385, AFL-CIO, appellee.
___ N.W.2d ___
Filed August 6, 2021. No. S-20-735.
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: Contracts: Appeal and Error. Courts do not
sit to hear claims of factual or legal error by an arbitrator as an appel-
late court does in reviewing decisions of lower courts. 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 bet-
ter one.
3. Arbitration and Award: Federal Acts: Contracts. Arbitration in
Nebraska is governed by the Federal Arbitration Act if it arises from
a contract involving interstate commerce; otherwise, it is governed by
Nebraska’s Uniform Arbitration Act.
4. Arbitration and Award: Federal Acts. Evident partiality within the
meaning of 9 U.S.C. § 10 (2018) exists when a reasonable person
would have to conclude that an arbitrator was partial to one party to
the arbitration.
5. Judges: Recusal: Judgments. Judicial rulings alone almost never con-
stitute a valid basis for a bias or partiality motion directed to a
trial judge.
6. Arbitration and Award: Motions to Vacate. Serious legal or factual
error by an arbitrator does not, standing on its own, provide a basis for
vacating an award.
- 919 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 9187. ____: ____. A court may not vacate an arbitration award governed by
Nebraska’s Uniform Arbitration Act on the ground that the arbitrator
manifestly disregarded the law.
8. Appeal and Error. Errors assigned but not argued will not be addressed
by an appellate court.
9. Actions: Attorney Fees: Words and Phrases. A frivolous action is
one in which a litigant asserts a legal position wholly without merit;
that is, the position is without rational argument based on law and evi-
dence to support the litigant’s position. The term “frivolous” connotes
an improper motive or legal position so wholly without merit as to
be ridiculous.
10. Actions. Any doubt about whether a legal position is frivolous or taken
in bad faith should be resolved in favor of the one whose legal position
is in question.
Appeal from the District Court for Douglas County: Leigh
Ann Retelsdorf, Judge. Affirmed in part, and in part reversed.
Heidi A. Guttau and George E. Martin III, of Baird Holm,
L.L.P., for appellant.
Michael P. Dowd and John E. Corrigan, of Dowd & Corrigan,
L.L.C., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Papik, J.
After the City of Omaha (City) sought to discharge Steve
LeClair, a firefighter and the president of the Professional
Firefighters Association of Omaha, Local 385, AFL-CIO
(union), LeClair exercised his contractual right to challenge
his discharge in arbitration. The arbitrator found that the City
did not have just cause to discharge LeClair and ordered his
reinstatement. The City responded by attempting to have the
arbitration decision vacated in district court. The district court
not only denied the City’s motion to vacate and confirmed the
arbitration award, it found the City’s motion to vacate was
frivolous and ordered it to pay the union’s attorney fees and
- 920 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918costs. In this appeal filed by the City, we find that while the
City’s motion to vacate was not frivolous, the district court did
not err in refusing to vacate the arbitrator’s decision. We there-
fore reverse the award of attorney fees and costs, but otherwise
affirm the decision of the district court.
BACKGROUND
November 2018 Incident and
LeClair’s Termination.
On November 9, 2018, LeClair was off duty and social-
izing at a bar in Omaha, Nebraska. R.J., an African-American
patron at the bar, alleged that at some point during that night,
LeClair made sexually suggestive comments to her and then
later approached her, said the words “white power,” and struck
her in the back.
After R.J. filed complaints regarding the incident, LeClair
was charged with assault and battery and disorderly conduct.
He pleaded no contest to the charges and was sentenced to 6
months’ probation.
In addition to the criminal charges, the City also pursued
an internal investigation. After the conclusion of the internal
investigation, the City issued a letter to LeClair in April 2019
informing him that the City was discharging him from employ-
ment. LeClair promptly informed the City that he was invoking
his right under the collective bargaining agreement between
the City and the union (CBA) to challenge his discharge
in arbitration.
Arbitration Hearing.
The parties agreed to an arbitrator, and a hearing was held
before her in August 2019. The arbitration hearing lasted 3 days.
Over 20 witnesses testified, and the arbitrator received nearly
100 exhibits. We provide only a brief summary of the evidence
presented at the hearing that is relevant to this appeal.
The City presented evidence that R.J. filed a citizen’s com-
plaint with the Omaha Fire Department and later made a
- 921 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918police report regarding the November 9, 2018, incident. The
City presented evidence regarding the criminal and internal
investigations it conducted after receiving R.J.’s complaints.
It presented evidence that during the internal investigation,
LeClair was instructed in a letter notifying him he was being
placed on administrative leave not to discuss the investigation
with other employees, and specifically not to engage in “unso-
licited communications with OFD Investigator Captain Kim
Remus.” The City presented evidence that LeClair nonetheless
called Kimberly Remus shortly after receiving that instruction
and brought up the investigation. Remus testified that when she
spoke to LeClair, LeClair informed her that he had been placed
on administrative leave and speculated that it was because the
fire chief, Daniel Olsen, had seen him talking to Remus in her
office a few days before. Remus testified that she informed
LeClair that his visit to her office was not the reason and that
LeClair then became silent for a moment, said goodbye, and
hung up.
Olsen testified that when both investigations concluded,
he reviewed the reports generated in the investigation and
watched surveillance video of the incident. After reviewing
these materials and the CBA, Olsen concluded that LeClair
could be discharged under the CBA and that discharge was
the appropriate sanction. Olsen explained that in deciding to
discharge LeClair, he took into account that LeClair’s conduct
would harm the reputation of the fire department.
At the arbitration hearing, LeClair attempted to show that
the decision to discharge him was influenced by his prior
political disputes with the City’s mayor, that the City’s investi-
gations were unfair, and that the City’s choice to discharge him
was excessive in light of his prior track record as an employee
and the way in which the City had disciplined other firefight-
ers for misconduct. As part of this effort, LeClair elicited tes-
timony from Remus that after she received a voicemail from
R.J. about the November 9, 2018, incident, Remus returned the
call and instructed R.J. how to file a complaint, which was not
- 922 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918something she usually did. The City’s human resources director
also acknowledged he called R.J. to see if she was going to file
a complaint after one of his initial contacts with her. LeClair
also presented evidence that on the same day that police reports
regarding R.J.’s complaint were provided to the City’s mayor
and forwarded to persons within her office and to a member of
the city council, the Omaha World-Herald newspaper published
an article regarding R.J.’s accusations. Other evidence at the
arbitration hearing included an acknowledgment from an inves-
tigating police officer that the scope of the investigation was
abnormal for an alleged misdemeanor; an email from the City’s
human resources director to one of the City’s prosecutors,
asking if the prosecutor had provided LeClair’s attorney with
the surveillance video of the incident and stating that he was
fighting not to give LeClair the video prior to LeClair’s being
interviewed for the internal affairs investigation; and evidence
showing that a pretermination conference was conducted by an
individual not employed by the City.
LeClair also presented evidence regarding his history with
the fire department. LeClair began working for the fire depart-
ment in 2002, with some interruptions for military service.
The only discipline in LeClair’s file was a reprimand for being
late for work in 2011. LeClair called a number of witnesses
both from within and outside the fire department who gener-
ally testified that in their years of working with and know-
ing LeClair, they had never observed any acts of bigotry or
racial discrimination, but that LeClair treated everyone equally.
Evidence was also introduced that LeClair sought funding
from an international firefighters union to establish a program
to increase diversity in the fire department and that he encour-
aged his nephew, who testified he is “[h]alf black, half white,”
to join the fire department. LeClair also introduced evidence
regarding the discipline the City imposed upon other firefight-
ers for misconduct.
LeClair testified at the arbitration hearing. He denied ever
engaging in racial discrimination during his life. Regarding
- 923 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918the November 9, 2018, incident, LeClair denied “hitting on”
R.J. or making any sexual advances toward her. He acknowl-
edged that he elbowed R.J. and said “what white power,”
but he also denied there was any racial animus or violence
intended. LeClair testified that earlier in the evening, he had
been discussing white nationalist groups with his colleagues.
He claimed he was attempting to make a negative statement
about those groups, but that R.J. was not a part of his earlier
conversations and that his statement was “not the right venue,
not the right person, not the right frame of mind,” and a mis-
take he regretted. He also testified that he did not realize the
extent of the force he exerted on R.J. when he made contact
with her.
Arbitrator’s Decision.
After the arbitration hearing, the arbitrator issued a writ-
ten decision. The arbitrator described the issue before her as
whether LeClair’s employment was terminated for just cause
under the CBA. The arbitrator stated that she would analyze
just cause through what she described as the “seminal defini-
tion” of the phrase set forth in Enterprise Wire Co., 46 Lab.
Arb. Rep. (BNA) 359 (1966) (Enterprise Wire), a labor arbi-
tration decision. The arbitrator explained that this definition
required the consideration of the seven following questions:
1. Was the employer’s rule or managerial order reason-
ably related to the orderly, efficient and safe operation of
the business?
2. Did the employer give any warning as to any pos-
sible discipline or consequences that could result from
that employee’s action or behavior?
3. Prior to administering discipline, did the employer
conduct an investigation to determine whether the
employee did in fact violate or disobey a rule or order?
4. Was this investigation fair and objective?
5. Did this investigation uncover any substantial proof
or evidence that the employee was guilty of violating or
disobeying a direct order?
- 924 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 9186. Did the employer obey all rules, orders and pen-
alties evenhandedly and without discrimination to all
employees?
7. Was the degree of discipline reasonably related to
either the seriousness of the employee’s offense or to the
record of past service?
In assessing these questions as they related to the City’s
termination of LeClair, the arbitrator concluded that the first
and second questions favored the City. The arbitrator con-
cluded that LeClair had engaged in conduct for which he
could be disciplined under the CBA and, in particular, that
LeClair “engaged in conduct [that] was offensive to a citizen of
Omaha” and had violated a direct order by contacting Remus
after being instructed not to do so. The arbitrator also deter-
mined that LeClair should have known that such actions could
result in discipline.
In answering the other Enterprise Wire questions, however,
the arbitrator found several problems with the City’s deci-
sion to terminate LeClair’s employment. First, the arbitrator
concluded that the City did not conduct a fair and impartial
investigation. The arbitrator found several aspects of the City’s
investigation problematic. She concluded that City officials
wanted R.J. to file a complaint and pressured her to do so,
that City officials had tried to withhold security video of the
incident at the bar from LeClair, and that the City violated the
CBA by not providing him with a pretermination hearing in
front of an impartial City decisionmaker.
The arbitrator also found that the City did not apply its
rules, orders, and penalties evenhandedly and without discrimi-
nation. On this issue, the arbitrator rejected the City’s argu-
ment that it had to discipline LeClair harshly because it would
be detrimental to the City’s reputation if the incident became
public. The arbitrator appeared to reject this argument based
on her conclusion that it was the City that publicized the inci-
dent. The arbitrator also noted that the City had imposed only
minor discipline when other firefighters had committed public
- 925 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918misconduct. In particular, she noted that another firefighter
had received only a 1-day suspension when he, while on duty
and in uniform, “‘liked’” a post on Facebook that “denigrated
Black Lives Matter and characterized [Barack] Obama as a
terrorist.”
Finally, the arbitrator found that the degree of discipline
was not commensurate either with the seriousness of LeClair’s
offense or with his record of past service. Here, the arbitra-
tor found important that there had been no other complaints
regarding LeClair in his career, that the only prior discipline
he had received was a single reprimand for being late for
work in 2011, and that he had been active in the community
and had worked for the inclusion of minorities in the fire
department.
The arbitrator concluded that the City did not have just
cause to terminate LeClair’s employment and ordered his rein-
statement with backpay. The arbitrator did find that LeClair
should be disciplined “for his violations of the contract and
his act of insubordination,” and accordingly, she stated that his
award of backpay should not include pay for the five shifts he
missed while on administrative leave.
District Court.
Shortly after the arbitrator issued her decision, the City
filed an application to vacate the arbitration award in district
court, asserting that the arbitrator had engaged in prejudicial
misconduct, demonstrated partiality or bias, exceeded her pow-
ers in various respects, and acted with manifest disregard for
the law. It also alleged that the arbitrator’s decision violated
public policy.
The union, named as the defendant in the action filed by
the City, responded by filing a motion to confirm the arbitra-
tion award. In the motion, the union alleged that the City’s
arguments in support of vacating the arbitration decision were
frivolous and requested that the district court award it attorney
fees and costs under Neb. Rev. Stat. § 25-824 (Reissue 2016).
- 926 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918Following a hearing at which it received as evidence both
the record of the arbitration and the arbitrator’s decision, the
district court issued an order denying the City’s application
to vacate. It found that the City had shown only disagreement
with the arbitrator’s factual findings and no evidence of mis-
conduct or bias. The district court also found that the arbitra-
tor had not exceeded her powers and that enforcement of the
arbitrator’s decision would not violate public policy. Finally,
the district court questioned whether it had the authority to
vacate the decision on the grounds that the arbitrator acted in
manifest disregard of the law, but concluded that even if it had
such authority, the arbitrator did not act in manifest disregard
of the law. Because the City failed to demonstrate a basis for
vacating the arbitration decision, the district court declined to
vacate the decision and instead confirmed it.
In a later order, the district court granted the union’s request
for attorney fees and costs. It explained that the arbitrator’s
decision could be vacated only for certain, limited reasons
and not for mere legal or factual error. The district court
concluded that the City presented claims of legal and factual
error “dressed up as” bases for which arbitration awards can
be reviewed. Consequently, it found that the City’s application
to vacate the arbitration decision was frivolous and entered
judgment in favor of the union for $16,020, the amount the
union incurred in attorney fees and costs in resisting the City’s
application.
After an unsuccessful motion to alter or amend in the dis-
trict court, the City filed a timely appeal, which we moved to
our docket.
ASSIGNMENTS OF ERROR
The City assigns, condensed, reordered, and restated, that
the district court erred by (1) concluding that the arbitra-
tor did not engage in prejudicial misconduct or demonstrate
partiality or bias, (2) concluding that the arbitrator did not
exceed her powers, (3) concluding that the arbitration deci-
sion should not be vacated on the grounds that the arbitrator
- 927 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918manifestly disregarded Nebraska law, (4) concluding that the
arbitration decision should not be vacated on the grounds that
it violates public policy, (5) holding the City to an incorrect
burden of proof to vacate the arbitration decision, (6) “implic-
itly rul[ing]” that the arbitration decision was not subject to
review, and (7) finding that the City’s application to vacate the
arbitration award was frivolous and awarding attorney fees and
costs on that basis.
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. However, the trial court’s factual findings will not
be set aside on appeal unless clearly erroneous. Garlock v. 3DS
Properties, 303 Neb. 521, 930 N.W.2d 503 (2019).
ANALYSIS
Legal Framework Governing Judicial
Review of Arbitration Awards.
The City’s overarching argument in this appeal is that it was
entitled to terminate LeClair’s employment under the CBA
and that the arbitrator’s decision ordering his reinstatement
should have been set aside by the district court. The City and
the union agreed, however, that a dispute like this would be
decided by an arbitrator. When parties agree to have an arbitra-
tor resolve a dispute, the law provides little room for a court to
undo the arbitrator’s decision.
If courts reviewed the decisions of arbitrators as if they
were decisions of lower courts, the parties’ agreement to arbi-
trate would be upset and the purpose of arbitration would be
frustrated. The parties’ agreement would be upset because
parties to an arbitration agreement have agreed to accept the
arbitrator’s view of the facts and the meaning of the contract
rather than that of a court. See 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- 928 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918(2020). As we have previously explained, “[w]hen . . . parties
[agree] to arbitration, they [agree] to accept whatever rea-
sonable uncertainties might arise from the process.” Jones v.
Summit Ltd. Partnership Five, 262 Neb. 793, 798, 635 N.W.2d
267, 271 (2001) (internal quotation marks omitted).
Not only would searching judicial review of arbitration deci-
sions disturb a private agreement, it would make arbitration, a
process that is designed to be swift and informal, much less so.
See, e.g., Hall Street Associates, L. L. C. v. Mattel, Inc., 552
U.S. 576, 588, 128 S. Ct. 1396, 170 L. Ed. 2d 254 (2008) (rea-
soning that “full-bore legal and evidentiary appeals” of arbitra-
tion decisions would “rende[r] informal arbitration merely a
prelude to a more cumbersome and time-consuming judicial
review process”) (internal quotation marks omitted); Jones,
262 Neb. at 798, 635 N.W.2d at 271 (“to allow full scrutiny
of such awards would frustrate the purpose of having arbitra-
tion at all—the quick resolution of disputes and the avoidance
of the expense and delay associated with litigation”) (internal
quotations marks omitted).
[2] For these reasons, we have emphasized that strong def-
erence is due an arbitrative tribunal. Henderson, supra. More
specifically, 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. Id. A court may not overrule an arbi-
trator’s decision simply because the court believes that its own
interpretation of the contract, or the facts, would be the better
one. Id.
[3] Although judicial review of arbitration decisions is
limited, it is not nonexistent. Both the Federal Arbitration
Act (FAA) and Nebraska’s Uniform Arbitration Act (NUAA)
authorize courts to vacate arbitration awards under certain,
specified circumstances. See, 9 U.S.C. § 10 (2018); Neb.
Rev. Stat. § 25-2613(a) (Reissue 2016). We have previously
said that arbitration in Nebraska is governed by the FAA if it
arises from a contract involving interstate commerce; other­
wise, it is governed by the NUAA. See Henderson, supra.- 929 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918A commentator has characterized that statement as a “gross
oversimplification,” John M. Gradwohl, Arbitration: Interface
of the Federal Arbitration Act and Nebraska State Law, 43
Creighton L. Rev. 97, 115 (2009), but we need not revisit it
here. In this case, both parties agree that the NUAA applies and
the FAA does not, and so we proceed with that understanding
as well.
The NUAA authorizes courts to vacate arbitration awards
upon the application of a party under a number of circum-
stances. See § 25-2613(a). The City contends that two of
the statutory bases for vacating an arbitration award under
the NUAA apply in this case. It contends that the arbitrator
acted with evident partiality and committed prejudicial mis-
conduct under § 25-2613(a)(2) and exceeded her powers under
§ 25-2613(a)(3).
The City also argues that the district court should have
vacated the arbitration award because the arbitrator acted in
manifest disregard of the law and because the arbitration
award was contrary to public policy. While the NUAA does
not expressly refer to either concept, the City contends courts
nonetheless have the authority to vacate arbitration awards for
these reasons. We consider in the sections below the City’s
various arguments as to why the district court should have
vacated the arbitration award, beginning with its claim that the
arbitrator demonstrated evident partiality or committed preju-
dicial misconduct.
City Did Not Show That Arbitrator Demonstrated
Evident Partiality or Committed
Prejudicial Misconduct.
Although the City asserts that the arbitrator demonstrated
evident partiality and committed prejudicial misconduct, it
does not offer any explanation as to why the arbitrator would
have been biased in favor of LeClair or against the City.
Neither does it identify any act of purported misconduct by the
arbitrator. Instead, the City points to certain factual findings
- 930 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918of the arbitrator and insists that bias or misconduct is the only
possible explanation for those findings.
[4] We do not appear to have previously set forth what a
party must show in order to demonstrate evident partiality
or prejudicial misconduct on the part of an arbitrator under
§ 25-2613(a)(2). We have, however, explored what must be
shown for a court to vacate an arbitration award under a similar
section of the FAA. In Dowd v. First Omaha Sec. Corp., 242
Neb. 347, 358, 495 N.W.2d 36, 43 (1993) (internal quotation
marks omitted), we held that “evident partiality” exists under
the FAA when “a reasonable person would have to conclude
that an arbitrator was partial to one party to the arbitration.”
Quoting Morelite Const. v. N.Y.C. Dist. Council Carpenters,
748 F.2d 79 (2d Cir. 1984). For reasons we discussed in
Dowd, supra, we believe that standard is appropriate under
§ 25-2613(a)(2) as well.
[5] The City has not demonstrated that a reasonable per-
son would have to conclude that the arbitrator was partial to
LeClair. The City is attempting to show that the arbitrator was
partial to LeClair based on her rulings alone. In the context of
motions to recuse a judge for bias or partiality, we have stated
that judicial rulings alone almost never constitute a valid basis
for a bias or partiality motion directed to a trial judge. See In
re Interest of Michael N., 302 Neb. 652, 925 N.W.2d 51 (2019).
A corollary exists in the world of arbitration: Courts recognize
that adverse rulings of an arbitrator alone will rarely evidence
partiality. See, e.g., Scandinavian Reinsurance v. Saint Paul,
668 F.3d 60 (2d Cir. 2012).
[6] We agree that the circumstances under which an arbitra-
tor’s rulings alone could demonstrate the requisite partiality
to vacate an award must be quite rare. As we will discuss
in more detail below, serious legal or factual error by the
arbitrator does not, standing on its own, provide a basis for
vacating an award. See Oxford Health Plans LLC v. Sutter,
569 U.S. 564, 133 S. Ct. 2064, 186 L. Ed. 2d 113 (2013). If
even serious legal or factual errors do not justify vacatur of an
- 931 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918arbitration award, it stands to reason that errors would have to
be particularly egregious for their only possible explanation to
be arbitrator bias.
Even assuming there are cases in which an arbitrator could
demonstrate partiality based on rulings alone, we do not
believe this is such a case. The factual findings to which the
City objects could be based on inferences the arbitrator drew
or credibility determinations she made. They might even be
ordinary mistakes. See AT&T Mobility LLC v. Concepcion, 563
U.S. 333, 350-51, 131 S. Ct. 1740, 179 L. Ed. 2d 742 (2011)
(grounds for review under 9 U.S.C. § 10 of the FAA focus “on
misconduct rather than mistake”). We do not find, however,
that a reasonable person would have to conclude that the arbi-
trator was partial to LeClair or biased against the City. The dis-
trict court thus did not err in declining to vacate the arbitration
award under § 25-2613(a)(2).
City Did Not Show That Arbitrator
Exceeded Her Powers.
The City also argues that the district court should have
vacated the arbitration award because the arbitrator exceeded
her ­powers. We do not appear to have previously addressed
what a party must show in order to demonstrate that an arbi-
trator exceeded his or her powers under § 25-2613(a)(3) of
the NUAA. Again, however, there is an analogous, indeed,
in this instance, identical, provision of the FAA. See 9
U.S.C. § 10(a)(4). And while we do not appear to have con-
strued § 25-2613(a)(3)’s FAA counterpart, the U.S. Supreme
Court has.
In Oxford Health Plans LLC, 569 U.S. at 569, the U.S.
Supreme Court stated that a party attempting to vacate an arbi-
tration award on the grounds that the arbitrator exceeded his or
her powers “bears a heavy burden.” It then went on to outline
just how heavy that burden is. “It is not enough,” the Court
wrote, “to show that the [arbitrator] committed an error—or
even a serious error.” Id. (internal quotation marks omitted).
- 932 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918Instead, “[b]ecause the parties bargained for the arbitrator’s
construction of their agreement, an arbitral decision even argu-
ably construing or applying the contract must stand, regard-
less of a court’s view of its (de)merits.” Id. (internal quotation
marks omitted). It is only when the arbitrator issues an award
that simply reflects the arbitrator’s personal “notions of . . . jus-
tice” rather than “draw[ing] its essence from the contract” that
a court may find that the arbitrator exceeded his or her powers.
Id. (internal quotation marks omitted). Accordingly, the Court
explained that the sole question presented when a party claims
that an arbitrator exceeded his or her powers is whether the
“arbitrator (even arguably) interpreted the parties’ contract, not
whether he got its meaning right or wrong.” Id.In interpreting provisions of the NUAA, we have previ-
ously taken guidance from federal court decisions interpret-
ing similar provisions of the FAA. See, e.g., Jones v. Summit
Ltd. Partnership Five, 262 Neb. 793, 635 N.W.2d 267 (2001).
The parties in this case do not argue that we should interpret
§ 25-2613(a)(3) differently than the U.S. Supreme Court has
interpreted 9 U.S.C. § 10(a)(4). And given the limited judicial
role in reviewing arbitration awards under Nebraska law, we
find the narrow basis for finding that an arbitrator exceeded
his or her powers under § 10(a)(4) of the FAA to be equally
appropriate under § 25-2613(a)(3) of the NUAA. We will thus
review the City’s claim that the arbitrator exceeded her powers
under the rubric outlined by the U.S. Supreme Court in Oxford
Health Plans LLC.
The City argues that the arbitrator exceeded her powers in
a number of ways. It first claims that the arbitrator’s finding
that the City lacked just cause cannot be squared with a sec-
tion of the CBA that identified certain employee conduct as
providing just cause for discipline. It also contends that the
arbitrator exceeded her powers by using the seven questions
from Enterprise Wire to analyze whether the City had just
cause to discharge LeClair, by considering issues that were
not before her, and by crafting her own discipline. We address
- 933 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918each of these arguments below, beginning with the City’s argu-
ment that the arbitrator’s decision cannot be reconciled with
the CBA.
Article 6, Section 1, of the CBA includes a list of actions that
“are declared to be good cause for disciplinary action against
any employee.” That list includes “[o]ffensive conduct or lan-
guage toward the public or toward City Officers or employees,”
“[i]nsubordination,” and “[c]ommission of acts or omissions
unbecoming an incumbent of the particular office or position
held, which render his reprimand, suspension, demotion, or
discharge necessary or desirable for the economical or efficient
conduct of business of the City or for the best interest of the
City government.” The same section of the CBA provides that
“[v]iolation of the provisions of this Section shall be punish-
able by reprimand, suspension, demotion, and/or discharge.”
Separate sections of article 6 address the various forms of
employee discipline available under the CBA: reprimand, sus-
pension, demotion, and discharge. Those sections provide that
each form of discipline may be imposed “for cause.” The
CBA also provides that the City may “suspend, demote, dis-
charge, or take other disciplinary action against employees for
just cause.”
The City argues that these provisions of the CBA authorize
it to impose upon an employee who engages in any of the
actions listed in article 6, section 1, any form of discipline it
chooses, up to and including discharge. And, the City adds,
there is no dispute that LeClair engaged in such actions. In
this regard, the City points out that LeClair admitted at the
arbitration hearing that he violated Olsen’s direct order not to
contact Remus and that he engaged in conduct “unbecoming an
incumbent” of his position. The City also notes that the arbi-
trator found that LeClair violated a direct order by contacting
Remus and engaged in conduct that was offensive to a citizen
of Omaha. According to the City, once the arbitrator found that
LeClair committed actions listed in article 6, section 1, the
- 934 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918only possible conclusion that could follow was that the City
had just cause to discharge LeClair.
The City may have identified a reasonable interpretation
of the CBA. It is also possible that if the interpretation of
the CBA the City advances was presented to a court, the
City would have prevailed. Even so, it would not inevitably
follow that the arbitrator exceeded her powers. As we have
discussed above, an arbitrator does not exceed his or her pow-
ers merely by interpreting a contract differently than a court
would. When it is claimed that an arbitrator acted in excess of
his or her powers, the inquiry is not whether the arbitrator’s
interpretation was correct, but whether the arbitrator was argu-
ably interpreting the contract at all. See Oxford Health Plans
LLC v. Sutter, 569 U.S. 564, 133 S. Ct. 2064, 186 L. Ed. 2d
113 (2013).
We find relevant to this question the fact that the arbitra-
tor stated in her written decision that LeClair committed
“offenses listed as ones for which a firefighter can be disci-
plined,” but went on to find that the City lacked just cause
to discharge LeClair. The arbitrator did not ignore the CBA’s
list of actions for which the City could impose discipline.
Instead, she appears to have interpreted the CBA to provide
the City with just cause to impose some form of discipline on
an employee who engages in such actions, but for the severity
of the discipline that the City may impose to depend on the
circumstances.
Under such a reading, the City might have just cause to
impose some lesser form of discipline for a particular action
of an employee falling within article 6, section 1, but not have
just cause to discharge the employee for that action. We cannot
say that such an understanding could only result from the arbi-
trator’s dispensing her own personal notions of justice, rather
than “draw[ing] its essence from the contract.” Oxford Health
Plans LLC, 569 U.S. at 569 (internal quotation marks omit-
ted). Because the arbitrator arguably interpreted the CBA to
make the question of whether there was just cause to discharge
- 935 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918LeClair dependent on more than whether he committed acts
identified in article 6, section 1, we find that the arbitrator did
not exceed her powers by not ending the inquiry as to whether
there was just cause for discharge after finding LeClair com-
mitted such acts.
The City next contends that the arbitrator acted in excess of
her powers by analyzing just cause through the seven questions
identified in the Enterprise Wire arbitration decision. Here, the
City contends that even if the CBA allowed the arbitrator to
separately analyze just cause after finding that LeClair com-
mitted acts identified in article 6, section 1, the CBA did not
authorize the arbitrator to use the Enterprise Wire questions to
complete that analysis.
We find that the arbitrator did not exceed her powers by
analyzing whether the City had just cause to discharge LeClair
through the seven questions of the Enterprise Wire test. The
CBA did not expressly define “just cause,” and so the arbitra-
tor had to look outside the CBA to assign some meaning to
the phrase. Our task is limited to deciding whether the arbitra-
tor was arguably adhering to contract interpretation when she
analyzed just cause through the Enterprise Wire questions. We
believe she was.
It is difficult to assign a meaning to a term like “just
cause” without engaging in tautology. See Children Servs.
v. Communication Workers, 113 Ohio St. 3d 291, 296, 865
N.E.2d 31, 35 (2007) (observing that definition of “good
cause” can be “nebulous and elusive”). The Enterprise Wire
questions provide some concrete considerations for a fact
finder to evaluate when an action must be supported by just
cause. Further, the specific questions that are part of the
Enterprise Wire test do not strike us as so disconnected to the
concept of just cause, that we could say the arbitrator strayed
from contract interpretation in using them. We are not the first
court to conclude that an arbitrator does not act in excess of
his or her powers by analyzing just or good cause through the
Enterprise Wire questions. See, e.g., Conoco, Inc. v. Oil, Chem.
- 936 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918& Atomic Workers, 26 F. Supp. 2d 1310 (N.D. Okla. 1998);
Children Servs., supra. See, also, Mario F. Bognanno et al.,
The Conventional Wisdom of Discharge Arbitration Outcomes
and Remedies: Fact or Fiction, 16 Cardozo J. Conflict Resol.
153, 157 (2014) (“it is reported that no definition of just cause
is more widely recognized and accepted than that first articu-
lated nearly fifty years ago in [Enterprise Wire]”).
The City asserts that rather than using the Enterprise Wire
questions to assess whether there was just cause to discharge
LeClair, the arbitrator should have analyzed good cause by
using a test articulated in Stejskal v. Department of Admin.
Servs., 266 Neb. 346, 665 N.W.2d 576 (2003). In that case, a
state agency appealed a district court’s determination that the
agency lacked just cause to discharge an employee in an action
brought under the Administrative Procedure Act. At issue was
whether the district court erred by finding that the employer
lacked just cause. We stated that we had not defined “just
cause” in this context but had stated that “‘good cause’ for
dismissal is that which a reasonable employer, acting in good
faith, would regard as good and sufficient reason for terminat-
ing the services of an employee, as distinguished from an arbi-
trary whim or caprice.” Stejskal, 266 Neb. at 351, 665 N.W.2d
at 581. We then used that definition to assess the district court’s
determination that just cause was lacking in that case.
The City suggests that the definition of “good cause” applied
in Stejskal differs greatly from the Enterprise Wire questions
used by the arbitrator. The City insists that whether the disci-
pline arose after a fair and objective investigation, whether the
discipline was consistent with that imposed on other employ-
ees, and whether the discipline accounted for the employee’s
record of service are not mentioned in the Stejskal definition.
Although undoubtedly different verbal formulations, it is not
clear to us that there is a substantive difference between the
Enterprise Wire questions and the Stejskal definition. Each
of the questions the City claims are absent from the Stejskal
definition would seem to be relevant to whether an employer’s
- 937 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918decision to discharge an employee was done reasonably, in
good faith, and not arbitrarily or with caprice, concepts that are
expressly encompassed in the Stejskal definition.
In any event, the City has not shown the arbitrator exceeded
her powers by not using the Stejskal definition to evaluate
whether the City had just cause to discharge LeClair. The con-
tention that Nebraska law required application of the Stejskal
definition is, at most, a claim that the arbitrator committed legal
error. A party does not show that an arbitrator exceeded his or
her powers even by showing that the arbitrator committed a
serious legal error. See Oxford Health Plans LLC v. Sutter, 569
U.S. 564, 133 S. Ct. 2064, 186 L. Ed. 2d 113 (2013).
Given our conclusion that the arbitrator did not exceed her
powers by utilizing the Enterprise Wire questions, the City’s
argument that the arbitrator exceeded her powers by consider-
ing issues not properly before her must fail. The City claims
that by considering the fairness of its investigation, the consist­
ency of its discipline decisions, and the quality of LeClair’s
past record of service, the arbitrator weighed in on matters that
were not submitted to her for decision. The arbitrator did not,
however, consider these issues as independent subjects. Rather,
she considered them as relevant to whether the City had just
cause to discharge LeClair, an issue that was clearly submitted
to her for decision.
Equally quick work can be made of the City’s claim that
the arbitrator exceeded her powers by “substitut[ing] her own
discipline.” Brief for appellant at 31. This objection is aimed
at the arbitrator’s order that LeClair should lose five shifts
of backpay for his actions. The City claims the arbitrator did
not have the power to craft her own discipline for LeClair’s
actions. The City, however, has not directed us to authority
that supports its argument. The City cites cases in which courts
have held that an arbitrator may not find that an employer has
just cause to discharge an employee and then substitute his
or her own discipline. See, e.g., 187 Concourse Associates
v. Fishman, 399 F.3d 524 (2d Cir. 2005). Such cases have no
- 938 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918application here; the arbitrator found the City lacked just cause
to discharge LeClair.
Because the City has not shown that the arbitrator exceeded
her powers, the district court did not err in refusing to vacate
the arbitration award on this basis.
“Manifest Disregard of the Law” Is
Not Basis to Vacate Arbitration
Award Governed by NUAA.
The City next contends that the district court should have
vacated the arbitration award because the arbitrator manifestly
disregarded Nebraska law. The City argues that the arbitrator
manifestly disregarded Nebraska law by determining whether
the City had just cause to discharge LeClair without applying
the definition of good cause applied in Stejskal v. Department
of Admin. Servs., 266 Neb. 346, 665 N.W.2d 576 (2003).
Before we consider whether the arbitrator manifestly dis-
regarded the law, however, we must first determine whether
courts even have authority to vacate arbitration awards gov-
erned by the NUAA on this basis. Although the City can
point to provisions of the NUAA that direct courts to vacate
arbitration awards when “[t]here was evident partiality by an
arbitrator,” see § 25-2613(a)(2), or when “arbitrators exceeded
their powers,” see § 25-2613(a)(3), there is no provision in the
NUAA that authorizes courts to vacate an arbitration award on
the grounds that the arbitrator manifestly disregarded the law.
The City claims that such power nonetheless exists, pointing to
federal cases holding that arbitration awards governed by the
FAA can be vacated if a court finds that the arbitrator acted in
manifest disregard of the law. See, e.g., Jones v. Dancel, 792
F.3d 395 (4th Cir. 2015).
Whether arbitration awards governed by the FAA can be
vacated on the grounds that the arbitrator manifestly disre-
garded the law is a question on which courts have diverged.
Like the NUAA, the FAA contains no express provision autho-
rizing courts to vacate an arbitration award because the arbi-
trator manifestly disregarded the law. Although the City does
- 939 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918identify some cases holding that the absence of statutory
language does not preclude courts from vacating arbitration
awards on the basis of manifest disregard of the law, see Jones,
supra, several other courts have held that arbitration awards
may be vacated only for the reasons enumerated in the FAA
and that therefore, an arbitration award may not be vacated on
the grounds that the arbitrator manifestly disregarded the law.
See, e.g., Medicine Shoppe Intern. v. Turner Investments, 614
F.3d 485 (8th Cir. 2010); Citigroup Global Markets, Inc. v.
Bacon, 562 F.3d 349 (5th Cir. 2009). We recently sided with
this latter group of courts, finding that the statutory grounds
in the FAA for vacating arbitration awards are exclusive. See
Seldin v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d
768 (2020).
We do not appear to have ever recognized manifest disregard
of the law as a basis to vacate an arbitration award governed by
the NUAA. And although other courts have held that arbitra-
tion awards governed by similar statutes may be vacated for
this reason, as we will explain, we are not persuaded that we
should follow their lead when it comes to arbitration awards
governed by the NUAA.
Some courts have concluded that even if the words “manifest
disregard of the law” are not expressly mentioned by statute,
“they have come to serve as a judicial gloss” on the language
authorizing courts to vacate arbitration awards if arbitrators
exceeded their powers. Johnson v. Wells Fargo Home Mortg.,
Inc., 635 F.3d 401, 414 (9th Cir. 2011). In other words, these
courts appear to have concluded that arbitration awards may be
vacated based on the arbitrator’s manifest disregard of the law
because an arbitrator necessarily acts in excess of his or her
powers if he or she manifestly disregards the law. We disagree
with this proposition.
In deciding whether an arbitrator exceeded his or her power,
the focus is, appropriately, on whether the arbitrator acted
within the bounds of contractual authority. It is the parties’
agreement, after all, from which the arbitrator’s power derives.
- 940 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918See Cornhusker Internat. Trucks v. Thomas Built Buses, 263
Neb. 10, 11, 637 N.W.2d 876, 878 (2002) (“[a]rbitration is
purely a matter of contract”). In contrast, as a Colorado appel-
late court has helpfully observed, the manifest disregard of the
law standard looks not to whether the arbitrator stayed within
the confines of contractual authority, but whether he or she
deliberately ignored governing law in deciding the dispute. See
Coors Brewing Co. v. Cabo, 114 P.3d 60 (Colo. App. 2004).
Consequently, “[a]n arbitrator does not necessarily exceed his
power when he does not properly apply the law.” Id. at 64.
Other courts have concluded that the authority to vacate
arbitration awards on the basis that the arbitrator manifestly
disregarded the law arises not from statute, but from common
law. Maryland’s highest court, for example, held that its courts
had such authority in WSC/2005 LLC v. Trio Ventures, 460
Md. 244, 190 A.3d 255 (2018). It reasoned that Maryland’s
enactment of its version of the Uniform Arbitration Act did
not preempt earlier cases in which Maryland courts recognized
a common-law authority to vacate arbitration awards if the
arbitrator manifestly disregarded the law. Any attempt to find
a similar common-law authority under Nebraska law, however,
faces an immediate barrier. In Hartman v. City of Grand Island,
265 Neb. 433, 657 N.W.2d 641 (2003), we rejected an argu-
ment that courts could, after the enactment of the NUAA, con-
tinue to vacate arbitration awards on common-law grounds not
set forth in the NUAA. As we stated there, “[t]he role of the
court [after enactment of the NUAA] is specifically addressed
and limited by the [NUAA].” Hartman, 265 Neb. at 437, 657
N.W.2d at 645.
We acknowledge that in 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),
we held that an arbitration award governed by the NUAA
could be vacated on the grounds that it violated public policy,
a ground also not mentioned in the NUAA. We do not, how-
ever, understand Henderson to have silently overturned our
- 941 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918conclusion in Hartman that the NUAA eliminated previously
existing common-law bases to vacate arbitration awards. Our
recognition of authority to vacate arbitration awards in viola-
tion of public policy in Henderson was based on “the more
general doctrine, rooted in the common law, that a court may
refuse to enforce contracts that violate law or public pol-
icy.” 277 Neb. at 247, 762 N.W.2d at 6-7 (internal quotation
marks omitted).
[7] We can discern no basis for courts to vacate arbitration
awards governed by the NUAA on the grounds that the arbitra-
tor manifestly disregarded the law. The Legislature authorized
the vacatur of arbitration awards on several grounds, but did
not identify an arbitrator’s manifest disregard of the law. To the
contrary, the NUAA specifically provides that “[t]he fact that
the relief was such that it could not or would not be granted by
a court of law or equity is not ground for vacating or refusing
to confirm the award.” § 25-2613(a). Given this direction from
the Legislature and our generally limited review of arbitra-
tion awards, it strikes us as particularly inappropriate for this
court to unilaterally prescribe a new basis on which arbitration
awards can be vacated.
Because we hold that courts lack the authority to vacate
arbitration awards governed by the NUAA on the grounds that
the arbitrator manifestly disregarded the law, we find that the
district court did not err by not vacating the arbitration award
on that basis.
City Did Not Show That Enforcement
of Arbitration Award Would
Violate Public Policy.
The City’s final argument for why the district court should
have vacated the arbitration award is that the award ordering
LeClair’s reinstatement violates public policy. As alluded to
above, in Henderson, this court held that courts may refuse to
enforce arbitration awards governed by the NUAA if the award
is “contrary to a public policy that is explicit, well defined, and
dominant.” 277 Neb. at 250, 762 N.W.2d at 9.
- 942 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918Although we recognized violation of public policy as a
basis for a court to refuse to enforce an arbitration award in
Henderson, we also articulated a number of ways in which this
doctrine was limited. First, we made clear that because parties
to arbitration have agreed to have an arbitrator decide their
dispute, a court may not, even when considering whether an
arbitration award violated public policy, “revisit the arbitrator’s
factual findings.” Id. at 244, 762 N.W.2d at 5. Second, we cited
U.S. Supreme Court precedent characterizing the public policy
exception as “narrow” and emphasizing that, when a party asks
a court to vacate an arbitration award ordering an employee’s
reinstatement on public policy grounds, the issue is not whether
the employee’s conduct violated public policy, but whether the
order to reinstate does so. State v. Henderson, 277 Neb. 240,
249, 762 N.W.2d 1, 8 (2009), disapproved on other grounds,
Seldin v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d 768(2020), citing Eastern Associated Coal Corp. v. Mine Workers,
531 U.S. 57, 121 S. Ct. 462, 148 L. Ed. 2d 354 (2000). Finally,
we also made clear that in order for an arbitration award to be
vacated on public policy grounds, the public policy at issue
must be “ascertained by reference to laws and legal precedents,
not from general considerations of supposed public interests.”
Henderson, 277 Neb. at 250, 762 N.W.2d at 9.
Despite the narrow nature of the power to vacate arbitra-
tion awards on the grounds that they violate public policy, we
determined that the arbitration award at issue in Henderson
should be vacated on those grounds. In that case, the Nebraska
State Patrol terminated the employment of a state trooper
who had joined a Ku Klux Klan-affiliated organization, but
an arbitrator ordered that he be reinstated. After exploring the
history and ideology of the Ku Klux Klan, we found that the
arbitrator’s award violated Nebraska’s public policy that “laws
should be enforced without racial or religious discrimina-
tion, and the public should reasonably perceive this to be so.”
Id. at 265, 762 N.W.2d at 18. We cautioned that this public
policy “is only implicated by behavior of the gravest nature,”
- 943 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918but concluded the trooper’s associating with the Ku Klux
Klan, “arguably the most reviled, feared, violent, and racist
organization in this country’s history,” qualified. Id. at 263,
264, 762 N.W.2d at 17 (internal quotation marks omitted). We
reasoned that Henderson had “endorsed a point of view that
is ­completely antithetical to the principles of Nebraska law
that he was bound by oath to enforce.” Id. at 265, 762 N.W.2d
at 18.
The City contends that LeClair’s reinstatement violated a
well-defined and dominant Nebraska public policy prohibiting
discrimination or intimidation on the basis of race and gender.
It also contends that his reinstatement violates public policy
because it undermines the public’s perception that the City is
committed to providing services without discrimination.
We do not question the City’s contention that Nebraska
has a well-defined and dominant public policy prohibiting
discrimination or intimidation on the basis of race or gender.
See, e.g., Neb. Rev. Stat. § 28-111 (Reissue 2016) (imposing
enhanced penalties if person commits certain criminal offenses
because of victim’s race or gender). The more difficult task for
the City is showing that LeClair’s reinstatement is so contrary
to that public policy that the arbitrator’s award should not
be enforced.
On this issue, the City asserts that LeClair engaged in dis-
crimination and intimidation on the basis of race and gender
in his interaction with R.J. at the bar and that thus, his rein-
statement would violate Nebraska’s public policy against such
behavior. Setting aside the fact that this argument appears to
conflate the issue of whether LeClair’s actions violated public
policy with the relevant question of whether his reinstatement
would violate public policy, we cannot make our own factual
findings that LeClair engaged in racial or gender discrimina-
tion or intimidation. Any such action would have to have been
found by the arbitrator. See Henderson, supra. And, at least
on the surface of her award, the arbitrator did not find that
- 944 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918LeClair engaged in discrimination or intimidation on the basis
of race or gender.
The City contends that despite any express finding of racial
or gender discrimination or intimidation by LeClair, it can
be clearly inferred that the arbitrator made such a finding. It
points out that the arbitrator stated that LeClair made “inap-
propriate comments” to R.J. and “shoved her after the state-
ment was made.” The City suggests that given the content
of LeClair’s alleged statements and the fact that R.J. is an
African-American woman, the arbitrator had to have found that
LeClair discriminated against R.J. and intimidated her on the
basis of race and gender.
We disagree with the City that the arbitrator necessarily
found that LeClair engaged in discrimination or intimidation
on the basis of race or gender by finding that he used inap-
propriate language and shoved R.J. LeClair admitted to using
inappropriate language and making contact with R.J. while
also disavowing that he was motivated by animus or otherwise
acting on the basis of R.J.’s race or gender. We reference this
testimony not to assess its credibility, but because the arbitra-
tor might have credited it. Her general findings of misconduct
on the part of LeClair do not necessarily demonstrate that she
found LeClair engaged in discrimination or intimidation on the
basis of race or gender.
Without a finding by the arbitrator that LeClair engaged in
discrimination or intimidation on the basis of race or gender,
the City is left with its argument that the arbitrator’s award
should not be enforced because of the effect his reinstatement
would have on the public’s perception of the City. This argu-
ment relies heavily on Henderson, where we held that public
policy precluded reinstating the state trooper who joined a
Ku Klux Klan-affiliated organization, in part, because his
reinstatement “would severely undermine reasonable public
perception” that “each citizen of Nebraska can depend on
law enforcement officers to enforce the law without regard to
race.” 277 Neb. at 263, 762 N.W.2d at 17. The City contends
- 945 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918that, in the same way, LeClair’s reinstatement would under-
mine the public’s perception that citizens of Omaha can depend
upon the City to “provide services without the possibility of
discrimination.” Brief for appellant at 30.
The City’s public perception argument attempts to subtly
but considerably expand our holding in Henderson. While the
City claims that the reinstatement of LeClair as a firefighter
would undermine the public’s perception that the City pro-
vides services without discrimination, the public policy we
recognized in Henderson was that the public should reasonably
perceive that laws are enforced without discrimination. See,
e.g., Henderson, 277 Neb. at 265, 762 N.W.2d at 18 (referring
to “explicit, well-defined, and dominant public policy that laws
should be enforced without racial or religious discrimination,
and the public should reasonably perceive this to be so”). We
found in Henderson that such a public policy existed by refer-
ring to Nebraska’s statute prohibiting law enforcement from
engaging in racial profiling, see Neb. Rev. Stat. § 20-501 et
seq. (Reissue 2007); the legislative history of that statute, in
which supporters of the statute asserted a need to counteract
any perception that law enforcement was engaging in racial
profiling; and language from an opinion of Massachusetts’
highest court discussing the importance of the public perceiv-
ing that police officers do not abuse their power. Because the
public policy we recognized in Henderson concerned the pub-
lic’s perception of law enforcement, it is of little use to the City
in contending that the reinstatement of LeClair, a firefighter,
violates public policy.
Obviously, the fact that we did not recognize an explicit,
well-defined, and dominant public policy in Henderson that
the public should perceive that all governmental services are
provided without discrimination would not preclude the City
from establishing that such a public policy exists in this case.
As we have explained, however, a court may only refuse to
enforce an arbitration award on the grounds that it is contrary
to public policy if that public policy is ascertained by reference
- 946 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918to laws and legal precedents, not from general considerations
of supposed public interests. See 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). And while we do not question that it is generally in the
public interest for the public to perceive that all governmental
services, including those provided by firefighters, are provided
without discrimination, the City has not directed us to any
laws or legal precedents it believes establish an explicit, well-
defined, and dominant public policy to that effect. As the party
seeking to vacate the arbitration award, the City has the burden
to establish the existence of any public policy that it contends
is inconsistent with enforcement of the arbitration award. See,
e.g., 2 Martin Domke et al., Domke on Commercial Arbitration
§ 38:12 (3d ed. 2021) (party challenging arbitration award
bears burden of proving grounds to vacate it). Because the City
has not shown that this arbitration award fits within the “nar-
row” category of cases in which enforcement would violate
public policy, see Henderson, 277 Neb. at 249, 762 N.W.2d at
8, the assignment of error lacks merit.
Burden of Proof and Scope of
Review in District Court.
In addition to its arguments that the district court erred by
not vacating the arbitration award, the City claims that the
district court erred in other, narrower ways. We turn to those
arguments now, beginning with the City’s claim that the district
court applied an incorrect burden of proof.
In the conclusion of its order finding that the arbitrator’s
award should not be vacated, the district court stated that
there had been “no clear showing, by the City, that one of the
statutorily or judicially recognized bases for vacatur has been
met.” The City contends that this language shows that the dis-
trict court erroneously applied a heightened burden of proof;
the City claims it was entitled to vacatur if it demonstrated a
ground for vacatur by the greater weight of the evidence.
- 947 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918It is not clear to us that the district court, in fact, imposed
a heightened burden of proof. But even assuming the district
court concluded that it could only vacate the arbitration award
if the City made a clear showing that a ground to vacate the
arbitration award was present, it does not follow that the dis-
trict court committed reversible error. The question of whether
one of the bases to vacate the arbitration award was present
is a question of law, which we review independently of the
district court. See Garlock v. 3DS Properties, 303 Neb. 521,
930 N.W.2d 503 (2019). We have performed that independent
review as detailed above and determined that the City’s argu-
ments for vacating the arbitration award lacked merit.
[8] The City also assigns that the district court erred by rul-
ing that the arbitration award was not subject to appeal. The
basis for this assignment of error is not clear. Although the
district court made reference to language in the CBA providing
that the arbitrator’s decision was to be binding and not subject
to appeal, the district court did not treat the arbitrator’s deci-
sion as immune from any court challenge. Instead, it individ­
ually considered each of the City’s arguments for vacating the
arbitration award. In any case, the City presents no argument
in support of this assignment of error, so we need not address
it further. We do not address errors that are assigned but not
argued. See Myers v. Nebraska Equal Opp. Comm., 255 Neb.
156, 582 N.W.2d 362 (1998).
Attorney Fees and Costs.
[9,10] Finally, the City argues that the district court erred
by awarding the union attorney fees and court costs on the
grounds that the City’s attempt to vacate the arbitration award
was frivolous under § 25-824(2). A frivolous action is one in
which a litigant asserts a legal position wholly without merit;
that is, the position is without rational argument based on law
and evidence to support the litigant’s position. Seldin v. Estate
of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020). We have
said that the term “frivolous” connotes an improper motive
- 948 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918or legal position so wholly without merit as to be ridiculous.
Id. Any doubt about whether a legal position is frivolous or
taken in bad faith should be resolved in favor of the one whose
legal position is in question. Id.On this issue, we, for the first time in this case, part com-
pany with the district court. Although we have found that
the City’s arguments that the arbitration award should have
been vacated lacked merit, we disagree with the district court
that the City’s position was so lacking in merit to be deemed
frivolous.
We disagree with the district court that the City made frivo-
lous claims of factual and legal error that were merely “dressed
up” as arguments that would allow the arbitration award to be
vacated. Prior to this case, we had not explored what a party
must show to demonstrate that an arbitrator exceeded his or
her powers under the NUAA or whether an arbitration award
governed by the NUAA could be vacated on the grounds
that the arbitrator manifestly disregarded the law. Further,
Henderson recognized that, at least in some circumstances,
an arbitration award can be vacated because it violates public
policy. Resolving all doubts about the City’s legal positions in
its favor, as our standard requires, we find that the arguments
made by the City that the arbitration award should be vacated,
while not meritorious, were also not so unreasonable to be
deemed frivolous.
Because we find that the City’s attempt to vacate the arbitra-
tion award was not frivolous, the district court erred in award-
ing attorney fees and costs pursuant to § 25-824. We reverse
that portion of the district court’s decision.
CONCLUSION
In its briefs and at oral argument in this case, the City con-
tended that it should be able to fire LeClair for his actions
and asked that the arbitrator’s decision finding otherwise be
vacated. The City, however, agreed to submit disputes like
this to arbitration. As a result, our role in this case is a limited
- 949 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CITY OF OMAHA v. PROFESSIONAL FIREFIGHTERS ASSN.
Cite as 309 Neb. 918one. While we do not minimize or condone the acts LeClair
admitted to, much less those he was accused of, all that we
are empowered to do is determine whether one of the narrow
grounds on which courts may vacate arbitration awards applies.
We find that while the City’s arguments that such grounds
were present were not frivolous, neither were they meritorious.
We therefore reverse the district court’s order to the extent it
awarded the union attorney fees and costs and affirm the order
in all other respects.
Affirmed in part, and in part reversed.
Miller-Lerman, J., not participating.