17 CIR 226 (2012) Appealed February 10, 2012.

NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS

Entered January 12, 2012 

APPEARANCES:

Before:  Commissioners Orr, Burger, and Lindahl

ORR, Commissioner 

NATURE OF PROCEEDINGS:

On May 2, 2011, Employees United Labor Association (“Petitioner”) filed three Petitions pursuant to Neb. Rev. Stat. § 48-824(1) against Douglas County (“Respondent,” together with Petitioner, the “Parties”), claiming that Respondent unilaterally changed health care benefits for three groups of employees represented by Petitioner without negotiation or agreement.  On May 13, 2011, Respondent filed its Answers.  On September 9, 2011, the parties filed a joint motion to consolidate the three Petitions because the cases involve the same parties, issues and arise out of the same facts.  On September 12, 2011, the Commission entered an order approving consolidation. 

On November 10, 2011, the Commission held a telephonic hearing.  The parties orally stipulated that the transcript and exhibits received for Employees United Labor Association v. Douglas County, Nebraska, 17 CIR 195 (2011) be offered in this case because the consolidated cases involve the same parties and the issues arise out of the same facts as Case No. 1257. Additionally, the parties orally stipulated to offering two additional exhibits- a copy of the contract between Petitioner and Respondent effective January 1, 2009 through December 31, 2010, and a letter dated March 4, 2011 between the attorneys on record for the case. Furthermore, the parties stipulated that these four offerings would constitute the sole evidence to be presented for the consolidated case. The Commission agreed to the request and all offered exhibits were received. 

FACTS:

The employees in this case are members of the same bargaining unit as the employees in Case No. 1257. Here, the three groups of employees within the bargaining unit perform work for the Douglas County Clerk/Comptroller, Douglas County Department of General Assistance, and Douglas County Department of Corrections. The contract between the parties began on January 1, 2009 and ended on December 31, 2010. The contract does not have a continuation clause and is not currently in effect. Respondent sent a memorandum dated November 16, 2010 to its employees stating that there were going to be changes in cost with regard to the health and dental insurance. Rates for health and dental insurance were increased by approximately 16 percent, which Respondent stated the parties would share pursuant to the 2010 rate-sharing structure. Respondent stated that based “on the contract” they did not need to negotiate this increase.  The changes would have been effective on January 1, 2011. 

DISCUSSION:

Petitioner argues that Respondent violated Neb. Rev. Stat. § 48-824(1) by unilaterally increasing health insurance premiums paid by employees without negotiating the issue. Respondent argues that it did not commit a prohibited practice when it passed on the contractually specified percentage of a cost increase for the health care plan to bargaining unit employees, and that Petitioner waived its right to bargain about the overall cost of the health plan. These consolidated cases bring forth the same health insurance issue that was decided in Employees United Labor Association, 17 CIR 195 (2011), which is currently on appeal.

In Case No. 1257, we held that Respondent’s failure to discuss these health insurance premiums was a prohibited practice. We see no change in circumstance or facts which would lead us to decide this consolidated case in a different manner. Respondent did not discuss its intention to implement the 2010 rate-sharing structure for 2011 with Petitioner before implementation. Additionally, the evidence does not show that Petitioner clearly and unmistakably waived its right to bargain over increased health insurance costs for 2011. Based on the evidence presented, we find that Respondent violated § 48-824(1) by not bargaining over increases in health insurance premium costs.

REMEDIAL AUTHORITY:

In its Petitions, Petitioner requests an order requiring Respondent to cease and desist in taking any further action with regards to implementation of higher insurance premiums, require Respondent to enter into good faith negotiations regarding health and dental premiums, and return Petitioner to the status quo prior to Respondent’s actions.

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. Having found that Respondent has engaged in a prohibited practice, Respondent is hereby ordered to recommence good faith negotiations with Petitioner within thirty (30) days. Respondent is further ordered to cease and desist from implementing changes in Petitioner’s health premium dollar amounts. Finally, Respondent is ordered to return the parties to the status quo ante by reimbursing Petitioner for such health insurance premiums improperly withheld, plus interest as set by Neb. Rev. Stat. § 45-103, at the Nebraska judgment rate of 2.061% now in effect. 

IT IS THEREFORE ORDERED, JUDGED, AND DECREED that:

1.      Respondent shall cease and desist from implementing changes in Petitioner’s health premium dollar amounts.

2.      Respondent shall reimburse bargaining unit members for any health insurance benefits improperly withheld, plus interest as set by Neb. Rev. Stat. § 45-103, at the Nebraska judgment rate of 2.061% 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 the issues presented in this order within thirty (30) days, and shall negotiate in good faith until an agreement has been reached or further ordered by the Commission. 

All panel commissioners join in the entry of this order.