## Facts

- Omaha Police Union Local 101 alleged the City of Omaha and the chief of police committed prohibited practices under Nebraska’s Industrial Relations Act (IRA) by investigating or disciplining officers for union-related speech.
- At a union meeting, Sgt. Timothy Andersen (union president) criticized how the police department calculated 911 response times; the chief opened an Internal Affairs (IA) investigation to determine what was said and whether procedures were undermined.
- IA later found Andersen committed no violation; the chief adopted that finding and imposed no discipline.
- Sgt. Kevin Housh wrote a sharply critical article about department leadership in a union newspaper distributed to members and the community.
- The chief opened an IA investigation into Housh for alleged unprofessional and disrespectful conduct; the chief terminated Housh, and the discipline was later resolved by reinstatement with a 20-day unpaid suspension.
- The Nebraska Commission of Industrial Relations (CIR) rejected the Andersen claim but found the City committed a prohibited practice by disciplining Housh, reasoning the article was protected union activity and the discipline unlawfully chilled union speech.
- In finding protection, the CIR used a private-sector NLRA-derived rule under which union speech loses protection only if “deliberately or recklessly untrue.”

## Issues

1. What legal standard governs whether a public employee’s union-related speech is protected activity under Nebraska’s IRA when the employer disciplines the employee.
2. Whether the CIR erred by applying an NLRA-based “deliberately or recklessly untrue” test to public-sector police officers.
3. Whether the CIR’s prohibited-practice finding based on discipline for the union-newspaper article could stand under the correct public-sector standard.

## Decision

- The Nebraska Supreme Court affirmed the CIR’s rejection of the claim that the Andersen IA investigation alone was a prohibited practice.
- The court held the CIR applied the wrong legal standard to the Housh article by importing a private-sector NLRA rule into a public-sector police context.
- The court reversed the CIR’s prohibited-practice determination as to Housh and remanded with directions for the CIR to reevaluate the claim under a public-employment “flagrant misconduct” balancing approach.
- The court did not decide whether Housh’s article was ultimately protected or unprotected; it required reconsideration under the correct framework.

## Legal Principles

- Nebraska’s IRA governs public employment; private-sector NLRA doctrines may be persuasive but cannot be applied mechanically to public employers.
- Union-related speech by public employees is generally protected activity, but protection may be lost when the conduct amounts to “flagrant misconduct” or otherwise substantially impairs workplace discipline, order, or necessary working relationships.
- Whether discipline constitutes a prohibited practice requires balancing the employee’s protected activity against the public employer’s legitimate interests in efficiency, discipline, and public confidence.
- In police departments, the employer’s interests in chain of command, discipline, and public trust carry special weight because of the department’s paramilitary structure.
- A claimed chilling effect on union activity depends on whether the underlying discipline targeted protected activity under the proper public-sector standard.

## Conclusion

The Nebraska Supreme Court required a public-sector, flagrant-misconduct balancing test to assess discipline for union-related speech by police officers under the IRA, affirming the dismissal of the Andersen-investigation claim but reversing and remanding the CIR’s prohibited-practice finding based on discipline for the union-newspaper article.


Omaha Police Union Local 101, IUPA, AFL–CIO v. City of Omaha, 274 Neb. 70, 736 N.W.2d 375 (Neb. 2007)