17 CIR 1 (2012)

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

 Entered January 11, 2012

APPEARANCES:

LINDAHL, Commissioner 

NATURE OF THE PROCEEDINGS:

         This matter comes on for consideration following the Nebraska Supreme Court’s opinion rendered on November 4, 2011, which affirmed in part, and in part reversed and remanded to determine what, if any, remedies are available based on the Court’s review of this case. The Commission’s prior decision is reported at 16 CIR 478 (2010) and the Supreme Court opinion is reported at 282 Neb. 262, 805 N.W.2d 320 (2011).

            Representatives of the Scottsbluff Police Officers Association (“Union”) and the City of Scottsbluff (“City”) began meeting in May 2009 to negotiate the contract for the October 2009 through September 2010 term.  A tentative agreement was reached on June 24.  On July 30, the City adopted amendments to the health insurance plan pertaining to excluded health insurance coverage for certain hazardous activities to be effective August 1, 2009.  The City notified the Union of these changes on August 4.  On August 19, the Union notified the City that a majority of the Union membership had voted to ratify the contract.  After August 19, some Union members began to express reservations to the Union’s president about the City’s amendment to the health insurance coverage, and the Union president asked the City’s representatives to not vote on the proposed contract.  The City ignored the request of the Union to not vote on the contract and the city council voted to ratify said contract on September 8.  The Union was notified of the City’s ratification on September 14 and requested the Union president to sign the contract, which the Union president refused to do.  Thereafter, the parties met three times informally to discuss the changes to health plan coverage.  On November 10, the City informed the Union that it would be reviewing the health care insurance rates and benefits for 2010, and the City’s Health Management Committee met and developed changes to the health insurance plan.  Subsequently, the City implemented changes to deductibles, office visit and prescription co-pays, and maximum out-of-pocket amounts in addition to the hazardous activities exclusions.  The Union president continued to refuse to execute the contract and subsequently filed a prohibited practice action on January 25, 2010 against the City for its unilateral implementation of the changes to health care premiums and benefits.  The City counterclaimed that the Union committed a prohibited practice by refusing to execute the written contract.  A trial was held on June 16, 2010.

In its August 31, 2010 decision, the Commission held that the City had committed a prohibited practice by unilaterally changing health care benefits without negotiating with the Union.  The Commission also held that the Union did not commit a prohibited practice by refusing to execute the ratified contract and that the Union did not fail to bargain in good faith nor waive its right to bargain.  The City appealed. 

In its November 4, 2011 opinion, the Nebraska Supreme Court affirmed the Commission’s findings regarding the City’s prohibited practice stating that health insurance benefits, coverage and related benefits are mandatory subjects of bargaining under the Industrial Relations Act.  The City was not excused from negotiating these mandatory bargaining subjects when the Union refused to execute the agreement nor did the Court find that the Union waived its right to collectively bargain about their health insurance.  The Court also held that there was competent evidence to support the Commission’s finding that the Union did not fail to bargain in good faith and that the Union did not waive its right to bargain.

Additionally, the Court found that the Commission erred in finding that the Union did not commit a prohibited practice by refusing to execute the ratified contract and reversed the portion of the decision regarding the Union’s violation of § 48-824(3)(c).  The Court stated that collective bargaining includes execution of a written agreement that incorporates all terms and therefore the Union remained under a duty to execute the ratified contract despite the City’s unilateral change to the health insurance exclusions.  The case was remanded with directions for the Commission to consider what remedies, if any, were available to the City for the Union’s violation.  

On November 30, 2011, the Commission held a telephonic conference with the parties to discuss the Supreme Court mandate.  By agreement of the parties, pleadings and briefs were filed to give each party an opportunity to propose possible remedies.

  SCOPE OF REMAND:

            Generally, a “remand” is an appellate court’s order returning a proceeding to the court from which the appeal began for further proceedings in accordance with the remanding order.  As a result of an order for remand and mandate from an appellate court, a trial court is required to adhere to the mandate and render judgment within the mandate’s purview.  See Hyannis Education Association v. Grant County School District, No. 38-0011, a/k/a Hyannis High School, 15 CIR 117 (2006) (citing Mace v. Macy, 13 Neb. App. 896 (2005)).

DAMAGES TO THE CITY FOR UNION VIOLATION:

            Each party submitted briefs to the Commission stating what remedies were available to the City for the Union’s prohibited practice.  Citing Teamsters Local 589 (Jennings Distribution), 349 N.L.R.B. 124 (2007), the City proposed that the Commission enter an order directing the Union to cease and desist from failing and refusing to execute the contract, to execute the contract, and give retroactive effect to the provisions of the contract.  In Teamsters Local 589, the Union informed the employer that the employees had ratified the contract but then did not execute the contract.  In holding that the Union had violated NLRA § 8(b)(3), the NLRB stated that once the union notified the employer that ratification had occurred, the Union could not change its position and refuse to execute the contract.  Id. at 128-129.  The City used the remedy set forth in Teamsters Local 589 as the guidance for the relief it seeks.

In its brief, the Union also proposed that the Commission order the Union to cease and desist its violation of the Industrial Relations Act in refusing to execute the ratified contract. The Union also proposed that the Commission reissue the portion of the original order affirmed by the Nebraska Supreme Court and further revise the order to include the reversal of the Commission’s findings regarding the Union.  The Union argues that no additional remedies are available to the City and it is not necessary to give retroactive effect to the provisions of the contract because the health insurance exclusions and increased premiums have already been implemented.  The Union further argues that the City has sustained no injury, in fact, and the only injury incurred has been on the part of employees who have paid for higher insurance benefits due to the unilateral changes on the part of the City.   

Based on the arguments presented, we find that the order of the Commission should be reissued and amended to include the findings of the Nebraska Supreme Court determining that the Union has violated § 48-824(3)(c) by refusing to execute the written contract with the City as ratified by the Union on August 19, 2009 and the City on September 8, 2009.  The Union is hereby ordered to cease and desist its refusal to execute the written contract between the Union and the City and to immediately execute said contract.  Because the contract year has ended and the benefits and premiums at issue have already been implemented, we find that retroactive effect need not be given to the contract.  The order on remand taxes each party for their own costs, and it is so ordered.

IT IS THEREFORE ORDERED that:

1.      In accordance with the decision of the Supreme Court of Nebraska, the Union shall cease and desist its refusal to execute the collective bargaining agreement for the October 1, 2009 through September 30, 2010 term ratified by the Union on August 19, 2009 and the City on September 8, 2009.  The Union shall immediately execute said collective bargaining agreement.

2.      The executed collective bargaining agreement between the parties shall not be given retroactive effect.

3.      Each party shall pay its own costs of the appeal.