16 CIR 478 (2010) Affirmed in part, and in part reversed and remanded with directions, 282 Neb. 262 (2011)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 Entered August 31, 2010.

APPEARANCES:

LINDAHL, C. 

Before:  Commissioners Lindahl, Orr, and Blake

NATURE OF THE PROCEEDINGS:

            The Scottsbluff Police Officers Association, Fraternal Order of Police, Lodge No. 38, (hereinafter, "Petitioner" or “Union”) filed a Petition on January 25, 2010, and an Amended Petition on March 29, 2010, pursuant to Neb. Rev. Stat. § 48-824(1), claiming that the City of Scottsbluff (hereinafter, "Respondent" or “City”) committed a prohibited practice through its unilateral implementation of a health care exclusion and the unilateral implementation of changes to applicable group health care benefits.  The Respondent filed an Answer and Counterclaim on February 8, 2010 and an Amended Answer and Counterclaim on April 12, 2010, denying the Petitioner’s allegations and stating that the Petitioner had already approved the collective bargaining agreement for October 1, 2009 through September 30, 2010, and that the Petitioner refused to negotiate and meet with the Respondent in good faith to discuss increases in health and dental insurance premiums effective January 1, 2010.

The Commission of Industrial Relations (hereinafter, the "Commission") conducted a Pretrial on June 1, 2010.  The parties both submitted a statement of issues.

The following issues were presented by the Petitioner:

1.                  Whether the Respondent’s conduct as alleged and admitted to in the pleadings or established at the time of trial with respect to its unilateral amendment of the exclusions to the health plan covering Petitioner’s bargaining unit members constitutes a breach of Respondent’s duty to bargain pursuant to Neb. Rev. Stat. § 48-824(1).

2.                  Whether the Respondent’s conduct as alleged and admitted to in the pleadings or established at the time of trial in taking action to unilaterally implement changes to applicable group health care benefits without negotiations or agreement of Petitioner effective January 1, 2010 constitutes a breach of the duty to bargain pursuant to Neb. Rev. Stat. § 48-824(1).

3.                  Whether the Respondent’s conduct as alleged and admitted to in the pleadings or established at the time of trial of this matter demonstrates an intentional breach of the duty to bargain under the Industrial Relations Act or represented a willful pattern or practice undermining the status of Petitioner, entitling the Petitioner to an award of reasonable attorney fees pursuant to Rule 42 of the Rules of the Commission of Industrial Relations.

4.                  Whether the Petitioner is entitled to be made whole by returning the parties to their status prior to the unilateral actions challenged herein until such time as the parties negotiate in good faith to reach terms and conditions of employment consistent with good faith negotiations.

The following issues were presented by the Respondent:

1.                  Whether Petitioner violated Neb. Rev. Stat. §§ 48-816(1) and 48-824(3)(c) in failing to execute a written contract incorporating the agreement reached by the parties in collective bargaining negotiations and approved by a 19-0 vote of the Petitioner’s members in August 2009.

2.                  Whether Petitioner violated Neb. Rev. Stat. §§ 48-816(1), 48-824(1), and 48-824(3)(c), by failing to bargain in good faith on proposed increases in health and dental insurance premiums where such premium amounts are specifically addressed in the collective bargaining agreement effective January 1, 2010.

3.                  Whether it is a violation of Neb. Rev. Stat. § 48-824(1) during the term of the existing collective bargaining agreement for the Respondent to change an exclusion section in the Respondent’s Health Benefits Plan which is not specifically addressed in the collective bargaining agreement.

4.                  Whether it is a violation of Neb. Rev. Stat. § 48-824(1) for the Respondent to implement changes in the health insurance deductibles, out-of-pocket maximums, co-pays, and co-insurance levels after the expiration of the collective bargaining agreement when such provisions in the Respondent’s Health Benefits Plan are not specifically addressed in the collective bargaining agreement.

5.                  Whether Petitioner’s misconduct under the Industrial Relations Act was of a willful nature so as to merit the awarding of Respondent its costs, including attorney’s fees.

The Commission then held a Trial on said issues on Wednesday, June 16, 2010. The parties submitted post-trial briefs on Thursday July 8, 2010 and reply briefs on Friday, July 23, 2010.

FACTS:

            The Scottsbluff Police Officers Association is a bargaining unit comprised of law enforcement officers below the rank of captain, including patrol officers and sergeants.  Prior to 1999, the bargaining unit and the City had yearly negotiations for each bargaining contract. In 1999, the parties negotiated a three-year contract which locked in health insurance rates for the bargaining unit employees for the entire three years. After the expiration of the 1999 contract, the parties then began again negotiating yearly contracts. However, the bargaining agreements ran on a fiscal basis and the health insurance rates were determined on a calendar-year basis.  At the time of these negotiations, in order for the City to prevent a situation where bargaining unit employees were paying different amounts than non-bargaining unit employees for health insurance, the parties originally implemented Articles 23 and 31 in the 2001 fiscal contract year. Articles 23 and 31 state:

ARTICLE XXIII

HEALTH AND DENTAL INSURANCE

The City will provide a choice of four health insurance plans to members. Participation in these plans shall be subject to policies and procedures as established in the City Personnel Manual and/or Administrative Regulations.  Members are provided with information to assist in making their plan selection.

The members of the SPOA shall pay the following rates for the balance of calendar year of 2008:

Plan A  $330 per month for single                     $655 per month for family

Plan B  $  68 per month for single                     $135 per month for family

Plan C  $  50 per month for single                     $100 per month for family

Plan D  $    0 per month for single                     $     0 per month for family

For Plan D, the City will contribute to the employee’s Health Savings Account:  $50 per month for single and $100 per month for family; subject to a minimum contribution by the employee to the employee’s Health Savings Account.

The dental insurance premium shall remain at $21.96 per month for family coverage and $10 for single dental coverage.

Article XXXI of the SPOA’s contract with the City of Scottsbluff states that during the term of the contract, negotiations may be re-opened for individual, specifically defined issues, such as cost of living increases, salary comparisons/increases, and health and dental premiums.

ARTICLE XXXI

CONTRACT LANGUAGE RE-OPENER

During the term of the contract, contract language may be modified if recommended by the Union and mutually agreed to by the City.  The contract may be re-opened for individual, specifically defined issues only, such as cost of living increases, salary comparisons/increases, and health and dental premiums.  This provision is not to be construed as a broad license to re-negotiate the contract in its entirety prior to the expiration of the contract.

           After the 1999 three­year contract, each year when negotiating health insurance, the City presented the calendar year figures for the health insurance to the Union and the Union usually accepted the premiums figure changes. The parties only discussed the suggested changes in premiums and those costs were the only costs ever taken to the Union membership for a vote. The Union has never previously requested negotiations on co-pays, stop-loss policies, maximum out-of-pocket amounts, and/or deductibles on the health insurance plans.  

            The Union attempted to use Article 31 to reopen the contract in one prior contract year. During the negotiated contract running from October 1, 2008 through September 30, 2009, the parties met on December 4, 2008 to discuss a 2.9 % cost-of-living increase to offset the increase in health insurance premiums.  See Exhibit 67.  The minutes do not reflect a discussion regarding the proposed cost-of-living offset. The parties then entered into an amendment of the contract for the term of January 1, 2009 through December 31, 2009. See Exhibit 20.

            For the 2009-2010 contract year negotiation in question, the parties met on May 6, 2009 to negotiate the contract.  The City presented numerous topics for negotiation including a change to Article 23. The City requested the removal of the health and dental premiums to be reopened each year prior to open enrollment.  The next negotiation session between the parties was held on May 20, 2009 and then another session was held on June 3, 2009. The fourth session was held on June 24, 2009. At the meeting on June 24^th, the parties agreed tentatively to the wage increases and then discussed potential changes to the YMCA membership language in Article 23. There was no direct discussion regarding Article 31 listed in any of the minutes relating to the negotiations with the Union. After June 24^th, there were no more “formal” negotiation sessions.

            The parties then exchanged a series of emails discussing the YMCA membership language.  A straw ballot was sent to the Union members on the YMCA membership language.  Ballots were given to Union members on or about August 8, 2009 and the Union counted those ballots on or about August 19, 2009. Via email, the Union president informed the City that the Union members had approved the agreement by a unanimous vote.

            Just prior to the time the ballots were sent the membership, the Union received notice from the City about the changes to the health insurance benefit plan pertaining to hazardous hobbies or activities, which was sent out on August 4, 2009.  The City self-funds a group health plan and the administration of the fund is through a third-party administration, Regional Care Inc. (“RCI”). This health plan is contained in Exhibit 69, which describes the benefits for the City of Scottsbluff. Starting on page 32, the health plan lists 47 “exclusions”. These exclusions include the exclusion for “Hazardous Hobby or Activity”. On July 30, 2009, the City adopted an amendment to the Health Insurance Plan which became effective on August 1, 2009. The amendment changed the language under the hazardous hobbies or activities exclusion by adding additional hazardous hobbies or activities.  The plan language was amended as follows:

DELETE:

            (16)      Hazardous Hobby or Activity.  Care and treatment of an Injury or Sickness that results from engaging in a Hazardous Hobby or   Activity.  A hobby or activity is hazardous if it is an activity which is characterized by a constant threat of danger or risk of bodily harm.  Examples of hazardous hobbies activities includes but is not limited to:  skydiving, auto racing, hang gliding, bungee jumping, snow mobiling, equestrian events and stunt aviation.

REPLACE WITH:

            (16)      Hazardous Pursuit, Hobby or Activity.  Services, supplies, care and/or treatment of an injury or sickness that results from engaging in hazardous pursuit, hobby or activity.  A pursuit, hobby or  activity is hazardous if it involves or exposes an individual to risk of a degree or nature not customarily undertaken in the course of the covered person’s customary occupation or if it involves leisure  time activities commonly considered as involving unusual or  exceptional risks, characterized by a constant threat of danger or                    risk of bodily harm, including but not limited to:  hang gliding,  skydiving, bungee jumping, parasailing, use of all terrain vehicles,  rock climbing, ultimate fighting, use of explosives, automobile, motorcycle, aircraft, or speed boat racing, reckless operation of a vehicle or other machinery, and travel to countries with advisory                     warnings.

The Union was not informed prior to the change in the plan (only given notice) and no “formal” negotiations occurred between the parties regarding the changes in the plan exclusion language. The City did not negotiate this change to the plan, stating through its administrator that: “We didn’t feel the plan document itself was a negotiable item. That was the city’s plan basically, to amend as it felt necessary.” Since the Union had concerns regarding the change in health plan, the Union sought advice from a local Scottsbluff attorney who instructed the Union president not to sign the contract. The Union promptly emailed the City to advise them that because of the health insurance issues, the Union would not sign the contract. The City’s administrator responded by stating that:

“I don’t need to remove the Council’s consideration of the contract from their agenda because if it is [sic] an insurance language issue they have nothing to say about it. That language is the result of our TPA. The only health insurance issue is how much each party pays for the CIR qualified plan.”

            The City then took the Union’s contract vote to a City council meeting later that same day. The City voted and approved the contract, without discussing the newly discovered insurance issue. On September 19, 2009 the City informed the Union that the City Council had approved the contract with the Mayor’s signature and the contract was available for the Union President’s signature.

The parties then met informally, three times, to discuss the health insurance plan design issue. At those meetings, the Union expressed its concern that if a bargaining unit member was not covered under the health insurance policy since the member was engaged in an excluded activity, that member could become bankrupt through medical bills.  Throughout those discussions, the City maintained its position that in terms of the health insurance, as long as the City provided reasonable coverage, the terms of the health insurance plan are solely within the control of the City.

On November 10, the City informed the Union that it was going to “go over” the insurance rates/benefits for 2010. However, since the parties were still in negotiations regarding the hazardous hobby exclusion, the Union declined to discuss the issue without the Union attorney. Separate from the discussions over the hazardous hobby exclusion, on November 24, 2009, the City’s Health Management Committee met and developed changes to the City’s health insurance plan. The City’s Committee changed the deductibles, the office visit and the prescription co-pays as well as the maximum out-of-pocket amounts. The City admits that it unilaterally changed the health insurance benefits because they believe it to be within management control.   

DISCUSSION:

The Petitioner argues that the Respondent failed and refused to negotiate a change in the terms and conditions of employment on a mandatory subject of collective bargaining, health insurance. The Petitioner alleges this is a violation of Neb. Rev. Stat. § 48-824(1). The Respondent argues that it did not commit an unfair labor practice under the Nebraska Industrial Relations Act by not negotiating the health insurance plan and the Respondent also argues the Petitioner committed a prohibited practice by not negotiating the agreement in good faith and by not signing the contract

The threshold issue in this case is whether the City of Scottsbluff’s health plan design (including the hazardous hobby exclusion) as well as negotiating co-pays, deductibles and maximum out-of-pockets, are mandatory subjects of collective bargaining.

There are three categories of collective bargaining subjects: mandatory, permissive, and prohibited. International Union of Operating Engineers Local 571 v. City of Plattsmouth, 14 CIR 89 (2002). aff’d. 265 Neb. 817 660 N.W.2d 480 (2003). The Industrial Relations Act only requires parties to bargain over mandatory subjects. Neb. Rev. Stat. § 48-816(1). The Commission in Service Employees International Union, Local No. 226 v. School District No. 66, 3 CIR 514 (1978), used a relationship test in determining bargaining issues. “Whether an issue is one for bargaining under the Court of Industrial Relations Act depends upon whether it is primarily related to wages, hours and conditions of employment of the employees, or whether it is primarily related to formulation or management of public policy.” Id. at 515; See also Coleridge Educ. Ass’n v. Cedar County School Dist. No. 14-0541, a/k/a Coleridge Community Schools, 13 CIR 376 (2001).

In an effort to establish working guidelines as to what constitutes mandatory subjects of bargaining, the Nebraska Supreme Court in Metro Technical Community College Educ. Ass’n, set forth the following test:

A matter which is of fundamental, basic, or essential concern to an employee’s financial and personal concern may be considered though there may be some minor influence of educational policy or management prerogative. However those matters which involve foundational value judgments, which strike at the very heart of educational philosophy of the particular institution, are management prerogatives and are not a proper subject for negotiation even though such decisions may have some impact on working conditions. However, the impact of whatever decision management may make in this or any other case on the economic welfare of employees is a proper subject of mandatory bargaining. 

Id. at 842. The Commission in Service Employees International Union, Local No 226 v. School District No 66, 3 CIR 514 (1978), used a relationship test in determining bargaining issues. “Whether an issue is one for bargaining under the Court of Industrial Relations Act depends upon whether it is primarily related to wages, hours and conditions of employment of the employees, or whether it is primarily related to formulation or management of public policy.” Id. at 515. Conditions of employment have an economic impact on the employee’s job assignment. Omaha Police Union, Local 101 v. City of Omaha, 7 CIR 179 (1984). This does not include management prerogatives. Several negotiation terms and conditions that would seem to be management prerogatives have been included under the umbrella of mandatory subjects of bargaining, such as parking stall assignments. Id. 

            Mandatory subjects of bargaining are not just topics for discussion during negotiations sessions. Unless clearly waived, mandatory subjects must be bargained for before, during, and after the expiration of collective bargaining agreements. In Rockwell Int’l Corp., 260 N.L.R.B. 1346, 109 L.R.R.M. 1366 (1982), the National Labor Relations Board found that the duty to bargain continues during the existence of a bargaining agreement concerning any mandatory subject of bargaining, which has not been specifically covered in the contract and regarding which the union has not clearly and unmistakably waived its right to bargain. In Rockwell, the Respondent, a manufacture of nuclear weapon components, maintained a cafeteria for its employees in part because of its remote location in the Rocky Flats near Golden, Colorado. The Respondent refused to bargain over food price increases in cafeteria items. In Rockwell, the Board overturned the administrative law judge’s finding that a zipper clause in the collective bargaining agreement constituted an effective waiver of the Union’s right to request bargaining about cafeteria and vending machine prices for the duration of the contract. Citing Ford Motor Co. (Chicago Stamping Plant) v. NLRB, 441 U.S. 488 (1979), the Board stated that the Respondent had violated Section 8(a)(5) of the National Labor Relations Act by refusing to bargain about unilateral increases in food prices made during the terms of a collective-bargaining agreement which did not specifically cover the subject of those prices. In sum, the Board found that the Respondent had a continuous duty to bargain over the matter of increases in the in-plant food prices. The Board concluded that the Respondent’s refusal to bargain over the price increases violated 8(a)(5) and (1) of the Act.

            Neb. Rev. Stat. § 48-824(1) declares that it is a prohibited labor practice for any employer … to refuse to negotiate in good faith with respect to mandatory topics of bargaining. The Commission has previously held that health insurance is a mandatory subject of bargaining. See Communication Workers of America, AFL-CIO v. County of Hall, 15 CIR 95 (2005). In County of Hall, the Commission found that health insurance is a mandatory subject of bargaining and the County cannot usurp the Union’s authority as the sole bargaining representative for its employees.  The Commission determined that the parties were not at impasse and that the County’s premature declaration of impasse was a per se failure to bargain in good faith and a prohibited practice.  The Commission ordered the County to reimburse health insurance premiums improperly withheld, plus interest.

In Fraternal Order of Police  Lodge 21 v. City of Ralston, 12 CIR 59 (1994), the Commission also stated that health insurance is a mandatory topic of bargaining, and as such, an employer had a duty to bargain with the union over changes in mandatory topics of bargaining. The Commission clearly determined that the duty continues even though the parties have a labor contract since the term or condition sought to be changed is not “contained in” that contract.  Quoting Rockwell Int'l Corp., 260 N.L.R.B. 1346, 1347, 109 L.R.R.M. 1366, 1367 (1982), the Commission found that: “The duty to bargain continues during the existence of a bargaining agreement concerning any mandatory subject of bargaining which has not been specifically covered in the contract and regarding which the union has not clearly and unmistakably waived its right to bargain.”

The Commission determined that the above duty to bargain could be waived. The Commission found that the burden to proving waiver was on the party asserting the waiver. Citing Pertec Computer Corp., 284 N.L.R.B. 810, 126 L.R.R.M. 1134 (1987). The Commission commented on its previous adopted standard, stating that the standard of proving waiver of a statutorily protected right must be clear and unmistakable. See Bullis v. School Dist. of Columbus, 4 CIR 27 (1979).  The Commission found that facts based upon the testimony in the case, indicated the union did not request to bargain over health insurance and that in order to bargain over a mandatory subject of bargaining, the union must make a timely request to bargain. Ultimately the Commission held that the union waived its right to bargain over the health insurance changes by failing to make any attempt to bring the City to the bargaining table over this issue.

Health Insurance–Group Health Care Benefits

The Petitioner argues that the Respondent unilaterally implemented health care benefits, including premiums, co-pays, deductibles, and maximum out-of-pocket expenses without bargaining. The Respondent argues that it did not breach its duty to bargain in good faith in making changes to the health plan document based on past practice. The Respondent counterclaims that the Union refused to bargain in good faith on the proposed increase in health and dental insurance premiums.

The City’s administrative regulations embodied in Exhibit 105 state that “it is the Committee’s responsibility to review and determine plan benefits, employee and employer contribution amounts, examine proposals for reinsurance carriers, monitor the services of third party administrator and determine when to rebid the service.” The Committee’s members consist of several management officials, which do not include any members of either of the City’s unions.  Both sides also testified that other than premiums, the parties never “bargained” specifically over other health care benefits.

The Respondent argues that Exhibit 15 indicates the Union refused to bargain collectively with the employer.  However, we find the evidence presented at trial instead establishes that the Health Insurance Committee (or the City) created the design of plan, the plan benefits, and the contribution amounts independently from the negotiation process. As seen in Exhibits 24 and 25, the changes in health insurance were substantial. For example, the maximum out-of-pocket expenses increase by $1,000 for single health insurance coverage. While in the past the parties have generally negotiated over health insurance premiums, the City is also required under the Industrial Relations Act to negotiate over deductibles, maximum out-of-pocket, co-pays and other health insurance benefits. See County of Hall, 15 CIR 95 (2005); City of Ralston, 12 CIR 59 (1994). Furthermore, the duty to bargain about health insurance continues during the existence of a bargaining agreement because health insurance changes do not happen concurrently with contract year bargaining. Furthermore, the Respondent presented no evidence that the Union had clearly and unmistakably waived its right to bargain. Accordingly because health insurance benefits are a mandatory subject of bargaining and the Union did not waive its right to bargain over the issues, we find the Respondent committed a prohibited practice in violation of Neb. Rev. Stat. § 48-824(1).

Health Insurance–Plan Design

The Petitioner argues that plan design is a mandatory subject of bargaining and that the Respondent committed a prohibited practice by unilaterally changing the plan design during the term of the existing agreement. The Respondent alternatively counterclaims that the Petitioner failed to execute a written contract in good faith during the term of an existing agreement and in doing so the Petitioner waived any of its rights to further bargaining on the issues of health insurance.

While health insurance is clearly a mandatory subject of bargaining, health plan design has not specifically been discussed in previous Commission decisions. Decisions of the NLRB, and Federal decisions interpreting the FLRA are helpful, but not binding precedent when the statutory provisions are similar. Nebraska Public Employee Local Union 251 v. Otoe County, 257 Neb. 50, 595 N.W.2d 237 (1999).  See also International Union of Operating Engineers, Local 571 v. City of Plattsmouth, 265 Neb. 817, 660 N.W.2d 480 (2003). In past cases we have concluded that Neb. Rev. Stat.  § 48-824(1) is sufficiently similar to Section 8(A)(5) of the National Labor Relations Act and for that reason we can use federal decisions for guidance in interpreting the scope and application of our statutes.

In FDIC v. Federal Labor Relations Authority,  977 F.2d 1493 (C.A.D.C.1992), the Federal Deposit Insurance Corporation petitioned for review of the order of the Federal Labor Relations Authority (FLRA) holding that it violated its duty to bargain under the Federal Service Labor Management Relations Statute (FSLMRS). The Court of Appeals held that the agency violated its duty to bargain when it unilaterally changed conditions of employment by requiring employees with family-plan health coverage to pay more for their insurance and by changing timing of “open season” for election of health insurance.

This Federal labor law case began when the insurance company which underwrites the agency's [FDIC's] own health insurance plan notified the agency that there would be rate increases for both the single and family options for the plan's next renewal period, due to expected increases in the costs of providing medical care. The agency determined that it would be advantageous to allow the renewal period for its own plan to coincide with the open season for the other Federal employee health benefit plans, and extended the 1987-88 enrollment period accordingly. The agency decided to absorb the premium increase for those subscribing to the single option in the plan, as part of the agency's share of the total premium. However, with regard to the employees who chose the family option coverage, the Agency passed on to the employee a portion of the premium increase.  The amount passed on was equivalent to the same percentage that had been being paid by the employees for the family option previously. The Agency decided to make these changes and notified employees of these changes by issuance of an employee bulletin. The union requested to bargain but the agency refused to honor those requests and implemented the changes as announced in its bulletin. The parties stipulated that no bargaining has occurred between them regarding these changes to the agency's health insurance plan.

In the holding, the FLRA rejected the FDIC's claim that it had no obligation to bargain because the agency's health insurance plan is not a condition of employment. The FLRA held that “the Agency was required to negotiate over the substance, impact and implementation of its decision to change its health plan.”

In light of the foregoing facts, the FLRA found that the FDIC had violated its duty to bargain when it unilaterally changed conditions of employment by requiring employees with family-plan coverage to pay more for their insurance and by changing the timing of the open season. The FLRA imposed a status quo ante remedy on the FDIC, requiring it to reinstate its 1987 practices, make whole any affected employees, and begin negotiations. Agreeing with the FLRA, the Court of Appeals affirmed its ruling in the entirety.

Whether plan design is a mandatory topic of bargaining is at issue in the instant case. In this case, on September 4, 2010, the Union notified the City, prior to the City voting on the contract that the Union was requesting further negotiations on the insurance issues (specifically the hazardous hobby exclusion). See Exhibit 10. The City very clearly responded via email stating that the insurance issues were not subject to negotiation and the City was going to proceed with voting on the contract.

The Respondent argues the Petitioner committed a prohibited practice in failing to execute a written contract incorporating the agreement reached by the parties .We find the evidence presented establishes that the Union did not engage in any delay tactics or avoid bargaining with the City. Instead, the City consistently expressed to the Union through various emails, administrative documents, and conversations between the parties that the Union did not have bargaining rights with regard to health plan exclusions. Exhibit 10 clearly states that the Union desired to resolve the insurance issues through the use of a newly-hired attorney, even suggesting dates and times for negotiations. The City’s response was consistent with its belief that it was under no obligation to bargain about health insurance plan design or health insurance beyond premiums.

The City argues that based on the parties’ past practice of negotiating insurance premiums, the Union’s current refusal to negotiate such insurance premiums equals a lack of good faith bargaining on the part of the Union. We can find no evidence that supports the City’s argument; instead, we find the Union’s desire to come to a resolution regarding health insurance plan design. The Union in the instant case, unlike the FOP Union in Ralston, did not attend the health insurance meeting, a meeting generally for all employees of the City of Scottsbluff.

The case law above proves that health insurance plan design is a mandatory subject of bargaining. Health insurance, including plan design as well as premiums and co-pays, are all subjects that must be bargained over. Changes to those subjects must be bargained at all times, not just during negotiations of the contract year in dispute. 

Unlike past case law, we do note the evidence in this case suggests that both parties previously lacked a clear understanding of mandatory subjects of bargaining (specifically health insurance). Here, the City was under the mistaken belief that it only had to bargain over health insurance premiums, and only bargain during the negotiation of a contract. The City also was under the mistaken belief that the health insurance plan is “owned” by the City and they merely need to provide “reasonable coverage”. Whereas, the Union only negotiated the general yearly premium increases, and did not previously negotiate other parts of health insurance.

Once the Commission determines that a matter is one for mandatory bargaining, it is for the party which did not bargain to establish a claim of waiver by evidence. The series of emails between the parties do not establish a clear and unmistakable waiver on the part of the Union nor do these emails establish that the Union refused to negotiate, as the Union’s email suggested several dates for the parties to discuss the insurance issue. Exhibit 15 or any of the following exhibits relating to the Health Insurance Committee’s meetings does not meet the burden of proof to establish knowledge on the part of the Union, and thus does not meet the burden of proof regarding waiver. See above Fraternal Order of Police v. The City of Ralston, 12 CIR 59 (1994) (the burden of proof is on respondent regarding the union’s waiver of the right to bargain over mandatory subjects. The burden must be established clearly and unmistakably that the union waived its right, including notice of a proposed change in the mandatory bargaining subject.) The Union’s past practice, however does not establish a waiver or a failure to bargain in the 2009 contract year. We find that the Respondent violated Neb. Rev. Stat. § 48-824(1), by not bargaining over health plan design and/or health care benefits during the term of the existing collective bargaining agreement .

Remedial Authority

            The Petitioner seeks an order returning the Petitioner to the status quo until the parties negotiate in good faith to reach terms and conditions of employment consistent with good faith negotiations. The Petitioner, in its brief, also requests attorney fees.

            Neb. Rev. Stat. § 48-825 states: “If the commission finds that the party accused has committed a prohibited practice, the commission, within thirty days after its decision, shall order an appropriate remedy.” The Commission has the authority to order an appropriate remedy, which will promote public policy, adequately provide relief to the injured party, and lead to the resolution of the industrial dispute.

It is clear that the Commission has the authority to issue bargaining orders following findings of prohibited practices and has done so in the past. See United Food and Commercial Workers, Local Union No. 22 v. County of Hall, 15 CIR 55 (2005). Having found that the Respondent has engaged in a prohibited labor practice, we find that the Respondent is required to negotiate with the Petitioner in good faith.

In County of Hall, the employees were reimbursed such health insurance premiums improperly withheld, since July 1, 2004 plus interest at the rate of 4.63%, which was the Nebraska judgment rate in effect. Furthermore, a review of F.D.I.C. v. Federal Labor Relations Authority, indicates that the appropriate remedy in a plan design change case returns the parties to the status quo ante. In that case, the FLRA found that the remedy was perfectly appropriate: ‘because when an agency makes unilateral changes and refuses to bargain over them, the typical remedy is for the FLRA to order a “make whole” or status quo ante remedy.’ While the Respondent’s conduct was not flagrant, aggravated, persistent and pervasive, it was a clear violation of its duty to bargain in good faith. Therefore, the Commission finds the Respondent should make all employees whole for any and all losses incurred as a result of the Respondent’s unlawful unilateral implementation of its final offer. The Respondent shall return the parties to the status quo ante and the parties shall recommence good faith negotiations over these issues within thirty (30) days.

Attorney Fees 

Not every prohibited practice will result in an award of attorney fees. To support an award of fees, under CIR Rule 42(b)(2a), it must be found that the party in violation has undertaken a pattern of repetitive, egregious, or willful prohibitive practice. We did not find any evidence that the Respondent has been willfully refusing to bargain over health insurance. Instead, the Respondent was under the mistaken belief that it was not required to bargain over health insurance. Therefore, since no evidence of repetitive, egregious, or willful behavior exists, we do not award attorney fees in the instant case. 

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED :

1.                  Respondent shall cease and desist from implementing changes in the members’ health insurance plan design and other health insurance benefits.

2.                  The Respondent shall reimburse the bargaining unit members for any health insurance benefits improperly withheld, plus interest as set by § 45-103, which is the Nebraska judgment rate of 2.218% now in effect. Adjustments resulting from this order shall be paid in a single lump sum payable within thirty (30) days. 

3.                  The parties shall recommence good faith negotiations over these issues within thirty (30) days and shall negotiate in good faith until an agreement has been reached or further order of the Commission.

All commissioners assigned to the panel in this case join in the entry of this Order.