12 CIR 242 (1996)


An Unincorporated Association |
Petitioner, |
NO. 029, a/k/a EWING PUBLIC |
SCHOOLS, A Political Subdivision |
of the State of Nebraska, |
Respondent. |


For the Petitioner: Mark D. McGuire

McGuire and Norby

605 South 14th Street, Suite 405

Lincoln, Nebraska 68508

For the Respondent: John F. Recknor

DeMars, Gordon, Olson, Recknor & Shively

1225 L Street, Suite 400

Lincoln, Nebraska 68501-1607

Before: Judges Flowers, Moore, McFarland, Cullan and DeLay (EN BANC)

McFarland concurring in part.


Nature of the Proceedings

Ewing Education Association, hereinafter referred to as the Association, filed a Petition with the Commission alleging that certain action taken by Holt County School District No. 029, hereinafter referred to as the District, constituted a prohibited practice entitling the Association to relief under Neb. Rev. Stat. § 42-824 et seq. The District responded by denying the allegations and asserting that because there existed a collective bargaining agreement between the parties, the Commission lacked jurisdiction over the Petition.


The Commission finds the following facts to be true. The Association, a labor organization as defined by Neb. Rev. Stat.

§ 48-801(6), is the recognized collective bargaining agent for all the non-administrative certificated employees (the teachers) of the District, an employer as defined by Neb. Rev. Stat. § 48-801(4). After negotiations, the Association reached an agreement with the District with respect to the terms and conditions of employment for the 1995-1996 contract year. The agreement contained a provision regarding health insurance. In particular, the parties agreed that the teachers would be provided with the same insurance coverage as they had in the preceding year with the cost of said coverage to be paid entirely by the District. More specifically, the District agreed to provide, at no cost to the Association, the Blue Cross/Blue Shield High Option Number One Health Care Program, hereinafter referred to as the High Option Plan.

The District ratified the agreement containing the health insurance provision at a board meeting held on July 10, 1995. On July 11, 1995, the Superintendent completed the application for the High Option Plan and mailed it to Blue Cross/Blue Shield. On August 28, 1995, a special meeting of the Board of Education was called. During that meeting, the Board voted to provide only High Option PPO coverage (hereinafter referred to as the PPO Plan) at no cost to the teachers. On September 13, 1995, the Superintendent completed a new application, this time for the PPO Plan, and mailed it to Blue Cross/Blue Shield. The District did not discuss the change in coverage with the Association. Rather, teachers were informed individually by mail. The District informed each teacher that if he or she opted to remain with the High Option Plan, the difference in premium between it and the PPO Plan would be deducted from his or her paycheck. Since October 1995, all teachers have had either $49.00 or $17.21 per month deducted from their paychecks depending whether the teacher had family or single coverage.

On November 7, 1995, the Association filed a Petition with the Commission alleging that the action taken by the District was a prohibited practice. The District denied the allegations and argued that the allegations, even if true, constituted a breach of contract over which the Commission lacks jurisdiction.


A. Jurisdiction

That a unilateral change in a term or condition of employment contained in a collective bargaining agreement may be a breach of contract and actionable as such goes without saying. We will not determine whether a breach of contract has occurred in this case because we have no jurisdiction to do so. The question is whether a unilateral change in a condition of employment contained in a collective bargaining agreement is also a prohibited practice. The Association argues that Neb. Rev. Stat. § 48-824 and § 48-825 (patterned after 29 U.S.C. § 158(a) and(b)) grant to the Commission the specific statutory authority to find and declare what is known elsewhere in labor law as an unfair labor practice. We agree.

B. Prohibited Practices

The Association alleges that the action taken by the District is a prohibited practice in that it (a) constituted a refusal to negotiate collectively with the Association as required by the Industrial Relations Act, (b) interfered with, restrained, or coerced members of the Association in the exercise of their rights under the Industrial Relations Act, and/or (c) denied those rights altogether. Neb. Stat. Rev. § 48-824(2)(a),(e) and (f).

§ 48-824(2)(e)

The Association alleges that the District failed and refused to negotiate a change in the compensation levels with the Association (by deducting the difference in insurance premiums from salaries) and dealt directly with the bargaining unit members in advising them of the unilateral reduction in their agreed upon level of compensation. (Petition paragraph 13). The Association argues that this action is a prohibited practice under § 48-824(2)(e) which states it shall be a prohibited practice to "refuse to negotiate collectively with representatives of collective-bargaining agents as required by the Industrial Relations Act." The Association is right if, under the Industrial Relations Act, the District had a duty to bargain over the health insurance provisions contained in the contract. Obviously, it cannot be a prohibited practice to refuse to negotiate unless a duty to negotiate exists.

The Association asks that we look to cases decided under the NLRA for guidance as § 48-824 et seq. was patterned after the NLRA. There we would find a number of cases holding that a unilateral change in the terms and conditions of an existing collective bargaining agreement is a violation the employer's duty to bargain in good faith. Those cases reach that conclusion because § 158(8)(d) specifically states that where there is a collective bargaining contract in effect "the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract" without the consent of the other and only after certain procedural steps are taken. In other words, under the NLRA a unilateral change in the terms and conditions of a collective bargaining agreement is by definition a failure or refusal to bargain. No similar language defining the duty to bargain can be found in the Industrial Relations Act. Our Supreme Court has held that decisions under the NLRA are helpful where similar provisions exist in Nebraska statutes, but that the federal decisions are of no help or benefit where similar provisions do not exist in Nebraska statutes. University Police Officers Union v. University of Neb., 203 Neb. 4, 277 N.W.2d 529 (1979).

Prior to the passage of what has now become § 48-824 et seq., our Supreme Court held that a duty to bargain exists only after a Petition has been filed with this Commission or a request for bargaining has been made. Kuhl v. Skinner, 245 Neb. 794, 515 N.W.2d 641 (1994). While the addition of § 48-824 to the Industrial Relations Act may have extended the duty to bargain beyond that found in Kuhl, we are not prepared to find that a duty to bargain exists in this case.

§§ 48-824(2)(a) and (f)

The last question, then, is whether the District's action interfered with, restrained or coerced employees in the exercise of their rights under the Industrial Relations Act or denied them those rights altogether. Neb. Rev. Stat. § 48-824(2)(a) and (f). In order to secure the continuous, uninterrupted and proper functioning of governmental services the legislature passed the Industrial Relation Act. The Act prohibits public employees from striking and gives to them instead the right to collectively bargain the terms and conditions of their employment and to come to the Commission of Industrial Relations when such bargaining fails. While the Act does not require the making of an agreement, there can be no doubt its purpose is to encourage and foster such agreements. Coming to the Commission is a last resort. If an agreement reached through collective bargaining can be materially altered by one party without the consent of the other, then there can be no real meaning to the collective bargaining process or the rights granted to the parties under the Industrial Relations Act.

In this case, the health insurance provision was a focal point of negotiations between the Association and the District. Continuation of the High Option Coverage at the District's expense was a priority for the Association. For the District to agree to this provision in the contract one month and take it away the next is a repudiation of the collective bargaining process altogether. We believe that Neb. Rev. Stat. § 48-824 et seq. was promulgated to protect the integrity of the collective bargaining process. In the instant case, the District's action subverts the Act's principle objective-- the establishment of terms and conditions of employment through the collective bargaining process. As such it is a prohibited practice under Neb. Rev. Stat. § 48-824(a) and (f).

For the foregoing reasons the Commission finds that the District has committed a prohibited practice and orders as follows:

1. From the date of this Order the District shall cease and desist from withholding from the wages of the non-administrative certificated employees of the District the sum of $49.00 or $17.21 each month for those eligible for dependent or single coverage respectively.

2. The District shall reimburse each non-administrative certificated employee of the District the total amount of money that has been withheld from his or her wages to pay for health insurance coverage since October, 1995. Said reimbursement shall be made no later than 14 days from the date of this Order.

3. The District shall place in conspicuous places in the school buildings of the District the Notice which is attached hereto and made a part of by this reference. Said Notice shall be posted within ten days of the entry of this Order remain posted for not less than 60 consecutive contract days.

4. The District's Cross-Petition is dismissed.

Entered May 6, 1996.



WE WILL NOT in any manner interfere with, restrain or coerce our employees in the exercise of their right to self-organization through the Ewing Education Association.

WE WILL NOT unilaterally modify the terms and conditions of the Negotiated Agreement this School District has entered into with the Ewing Education Association without first bargaining any such modifications with the Ewing Education Association and if an understanding is reached as to any such modifications that the same will be reduced to writing.

WE WILL NOT deal directly with employees who are represented by the Ewing Education Association as their collective bargaining agent with respect to terms and conditions of employment that are mandatory topics of collective bargaining and/or which are contained in the Negotiated Agreement between the Ewing Education Association and the School District.



Dated _____________________ By ____________________________

(Representative) (Title)