Employees United Labor Assn. v. Douglas Cty.

EMPLOYEES UNITED LABOR ASSN. v. DOUGLAS CTY. 	121
Cite as 284 Neb. 121
E mployEEs UnitEd labor association, appEllEE and
cross -appEllant, v. doUglas coUnty, nEbraska,
appEllant and cross -appEllEE.
816 N.W.2d 721
Filed July 13, 2012. 	Nos. S-11-712, S-12-121.
1. Commission of Industrial Relations: Appeal and Error. In reviewing an appeal
from the Commission of Industrial Relations in a case involving wages and con-
ditions of employment, an order or decision of the commission may be modified,
reversed, or set aside by the appellate court on one or more of the following
grounds and no other: (1) if the commission acts without or in excess of its pow-
ers, (2) if the order was procured by fraud or is contrary to law, (3) if the facts
found by the commission do not support the order, and (4) if the order is not sup-
ported by a preponderance of the competent evidence on the record considered as
a whole.
2. Contracts: Labor and Labor Relations. Generally, when terms or conditions of
employment are in a contractual provision, the status quo is determined by refer-
ence to the precise wording of the relevant contractual provision, even when that
provision is contained in an expired contract.
Appeals 	from 	the 	Commission 	of 	Industrial 	Relations.
Affirmed in part, and in part reversed and vacated.
Donald W. Kleine, Douglas County Attorney, and Diane M.
Carlson for appellant.
Raymond R. Aranza, of Scheldrup, Blades, Schrock, Smith
& Aranza, P.C., for appellee.
HEavican, c.J., WrigHt, connolly, stEpHan, mccormack,
and millEr-lErman, JJ.
stEpHan, J.
In these consolidated appeals, the Commission of Industrial
Relations (CIR) determined that Douglas County, Nebraska,
committed a prohibited labor practice when it increased union
members’ monthly health insurance premiums without nego-
tiating. Douglas County appeals, contending that the parties’
collective bargaining agreement (CBA) authorized its unilateral
action and that its action did not change the status quo. We
affirm in part, and in part reverse and vacate.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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122 	284 NEBRASKA REPORTS
FACTS
Douglas County and Employees United Labor Association
(EULA) entered into a CBA effective January 1, 2009, through
December 31, 2010. Article 12 of the CBA is entitled “Insurance
and Pension Benefits” and provides in relevant part:
Section 1. The County will publish a rate sheet to the
employees that will show the premium equivalencies for
medical and dental insurance costs. Such rate sheet shall
also show the dollar contribution for each plan for the
County and the employee according to the following:
1. The County will pay 95% of the premium for each
employee who has employee-only coverage under the
County’s medical insurance plan, and the employee shall
pay the remaining 5%.
2. The County will pay 77% of the premium for each
employee who has employee plus one coverage under the
County medical insurance plan, and the employee shall
pay the remaining 23%.
3. The County will pay 80% of the premium for each
employee who has employee plus two or more cover-
age under the County medical insurance plan and the
employee shall pay the remaining 20%.
. . . .
The County reserves the right to select the method by
which health insurance benefits are provided. In the event
that health insurance benefits are not provided through an
HMO and/or indemnity plan the County/employee contri-
bution rates are subject to renegotiation.
The health insurance premiums are set annually. The CBA does
not contain a continuation clause.
No increases were made in the health insurance premium
rates for the 2010 calendar year. But on November 16, 2010,
Douglas County sent a memorandum to EULA members with
an attached health insurance premium rate sheet effective
January 1, 2011. This rate sheet showed increases in the overall
premium costs for all EULA members for calendar year 2011.
The increases were based on the percentage of contribution
allocations in the CBA. No changes were made to the health
insurance coverage other than the increased premiums. The

EMPLOYEES UNITED LABOR ASSN. v. DOUGLAS CTY. 	123
Cite as 284 Neb. 121
November 16 memorandum stated that Douglas County was
“pass[ing] along to the employees” “the increased premium
cost for 2011” “as specified in the [CBA].” Douglas County
began deducting the increased premium costs from employee
paychecks in December 2010. Douglas County did not negoti-
ate the increase in premiums with EULA.
On January 3, 2011, EULA filed a prohibited labor practice
action alleging that Douglas County unilaterally changed the
health insurance benefits of certain of its members without
first negotiating. The CIR conducted an evidentiary hearing
on the petition in April, and on July 25, the CIR held that in
passing on the increase in premiums without first negotiat-
ing, Douglas County committed a prohibited labor practice
in violation of the Industrial Relations Act.1 The CIR rea-
soned Douglas County had a duty to bargain over the change
as a mandatory subject of bargaining and ordered Douglas
County to negotiate the issue. As a remedy, the CIR required
Douglas County to reimburse EULA members for the amount
of increased premiums they had paid, plus interest. Douglas
County timely appealed, and the case is docketed before us as
case No. S-11-712.
Meanwhile, on May 2, 2011, EULA filed three additional
petitions 	alleging 	that 	Douglas 	County 	also 	unilaterally
changed the health insurance benefits of certain other EULA
members. These petitions were consolidated before the CIR. In
November, a telephonic hearing was conducted and the parties
stipulated that the record and exhibits received by the CIR in
case No. S-11-712 should also be received in the pending case.
On January 12, 2012, the CIR again held that Douglas County
committed a prohibited labor practice by passing on the pre-
mium increase without bargaining and ordered Douglas County
to negotiate the issue and reimburse EULA members for the
amount of increased premiums they had paid, plus interest.
Douglas County timely appealed, and the case is docketed
before us as case No. S-12-121. We granted Douglas County’s
motion to consolidate the two appeals.
1 Neb. Rev. Stat. §§ 48-801 to 48-838 (Reissue 2010).

124 	284 NEBRASKA REPORTS
ASSIGNMENTS OF ERROR
Douglas County assigns in both appeals that the CIR erred
in (1) finding it committed a prohibited labor practice when it
passed on a portion of the increased cost of the health insur-
ance plan to the employees; (2) not giving full force and
effect to the plain language of the CBA, which unequivocally
defined the parties’ rights regarding how health insurance
premiums were to be shared; and (3) concluding that the
health insurance contribution percentages expired when the
CBA expired.
In a cross-appeal, EULA contends the CIR erred in failing to
award it attorney fees.
STANDARD OF REVIEW
[1] In reviewing an appeal from the CIR in a case involving
wages and conditions of employment, an order or decision of
the CIR may be modified, reversed, or set aside by the appel-
late court on one or more of the following grounds and no
other: (1) if the CIR acts without or in excess of its powers, (2)
if the order was procured by fraud or is contrary to law, (3) if
the facts found by the CIR do not support the order, and (4) if
the order is not supported by a preponderance of the competent
evidence on the record considered as a whole.2
ANALYSIS
The Legislature has declared that the continuous, uninter-
rupted, and proper functioning and operation of state gov-
ernment is essential to the welfare, health, and safety of the
people of Nebraska.3 As part of this policy, it is a “prohibited
practice” for any state government employer to refuse to
negotiate in good faith with employee union representatives
on mandatory topics of bargaining.4 This principle applies
2 Board of Trustees v. State College Ed. Assn., 280 Neb. 477, 787 N.W.2d
246 (2010); State v. State Code Agencies Teachers Assn., 280 Neb. 459,
788 N.W.2d 238 (2010).
3 § 48-802.
4 See § 48-824(1).

EMPLOYEES UNITED LABOR ASSN. v. DOUGLAS CTY. 	125
Cite as 284 Neb. 121
before, during, and after the expiration of a collective bargain-
ing agreement.5
Here, Douglas County is the governmental entity and
EULA is the union representing certain employees of Douglas
County. The parties agree that health insurance, including
health insurance premiums, is a mandatory topic of bar-
gaining.6 They further agree that Douglas County refused
to negotiate with EULA prior to passing on the increase
in health insurance premiums. Under these circumstances,
Douglas County’s actions would normally be a per se viola-
tion of the duty to bargain in good faith on mandatory topics
of bargaining.7
But Douglas County contends it did not commit a prohibited
practice under the facts of these cases because (1) the health
insurance premium issue is “covered by” the existing language
of article 12 of the parties’ CBA and (2) the increased premi-
ums did not change the status quo.8 In addressing these argu-
ments, we may look to decisions of the National Labor Relations
Board for guidance, although its decisions are not binding on
this court.9
contractUal langUagE
Douglas County’s primary argument is that it had no duty
to bargain prior to passing on the increase in health insur-
ance premiums, because the parties had already bargained the
issue. Specifically, it contends that “the topic of premiums has
5 Washington County Police Officers Association/F.O.P. Lodge 36 v. County
of Washington, State of Nebraska, No. 1247, 2011 WL 2286982 (C.I.R.
May 31, 2011).
6 See, e.g., Scottsbluff Police Off. Assn. v. City of Scottsbluff, 282 Neb. 676,
805 N.W.2d 320 (2011); F.O.P., Lodge No. 21 v. City of Ralston, NE, 12
C.I.R. 59 (1994).
7 See, IBEW Local 763 v. Omaha Pub. Power Dist., 280 Neb. 889, 791
N.W.2d 310 (2010); FOP Lodge 41 v. County of Scotts Bluff, 13 C.I.R. 270
(2000).
8 Reply brief for appellant at 3.
9 See Scottsbluff Police Off. Assn., supra note 6. See, also, Nebraska Pub.
Emp. v. Otoe Cty., 257 Neb. 50, 595 N.W.2d 237 (1999).

126 	284 NEBRASKA REPORTS
already been negotiated and the result of that negotiation is
specifically memorialized in [article 12 of] the CBA.”10
We assume without deciding that the language of article
12 authorized Douglas County to unilaterally pass on a per-
centage of the increase in health insurance premiums dur-
ing the term of the CBA. But that is not the circumstance
before us. Here, Douglas County increased EULA members’
health insurance premiums effective January 2011, after
the CBA had expired. Although Douglas County repeat-
edly asserts in its brief that the parties agreed to abide by
the terms of the CBA until a new one was negotiated, no
evidence in the record supports a finding that the actual
CBA remained in effect after December 31, 2010. Indeed,
Douglas County’s primary witness testified that the contract
with EULA expired on December 31, 2010, and that the par-
ties were “not under any existing contract” at the time of
trial. The CBA had no continuation clause, and on the record
before us, we conclude that it had expired before Douglas
County implemented the increase in EULA members’ health
insurance premiums.
Because the CBA had expired, Douglas County’s argument
that it had no duty to bargain on the issue of health insurance
premiums because the parties’ bargain was memorialized in the
CBA is without merit.11 Instead, upon expiration of the CBA,
either Douglas County or EULA could demand bargaining on
any mandatory subject, including health insurance benefits,
whether or not that subject was addressed in the previous
agreement.12 EULA effectively requested bargaining on the
health insurance premiums when it asserted Douglas County
improperly passed on the increases to its members, and it is
clear from the record that Douglas County refused to bargain
the issue. The CIR did not err in finding that Douglas County
committed a prohibited labor practice and in ordering Douglas
County to commence negotiations.
10 Reply brief for appellant at 4.
11 See 1 N. Peter Lareau, Labor and Employment Law § 12.04[9][b] (2010).
12 Id.

EMPLOYEES UNITED LABOR ASSN. v. DOUGLAS CTY. 	127
Cite as 284 Neb. 121
statUs QUo
Douglas County also contends that it did not commit a pro-
hibited practice because its action in passing on the premium
increases pursuant to the percentage allocations in the CBA
did not change the status quo. To support this argument, it
contends that even though the CBA expired, legally, its terms
continue in effect until a new agreement is reached. According
to Douglas County, because the increase was implemented
pursuant to the continuing contractual terms, there was no
change in the status quo, and thus it had no duty to bargain on
the issue.
The CIR has broadly held that “parties to a collective
bargaining agreement continue it in effect beyond its expira-
tion date until” a new agreement has been reached.13 A more
precise recitation of the rule is that once a CBA expires, the
parties’ obligations to one another are governed by the doctrine
of maintaining the status quo while they continue to negotiate
a successor agreement.14 And the principle of maintaining the
status quo demands that all terms and conditions of employ-
ment remain the same during collective bargaining after a CBA
has expired.15
But, contrary to the argument advanced by Douglas County,
this does not mean that the expired CBA continues in effect.
Rather, it means that the conditions under which the employees
worked endure throughout the collective bargaining process.16
Here, the CBA expired, and although its terms and conditions
of employment continue in effect as a temporary means of
13 Locals 601 et al. v. State of Nebraska Department of Public Institutions, 6
C.I.R. 78, 80 (1982).
14 Appeal of Alton School Dist., 140 N.H. 303, 666 A.2d 937 (1995). See,
Intermountain Rural Elec. Ass’n v. N.L.R.B., 984 F.2d 1562 (10th Cir.
1993); N.L.R.B. v. Southwest Sec. Equipment Corp., 736 F.2d 1332 (9th
Cir. 1984); R.E.C. Corp., 296 N.L.R.B. 1293 (1989); Police Benev. Ass’n
v. Orange County, 67 So. 3d 400 (Fla. 2011); Hill v. J.C. Penney, Inc., 70
Wash. App. 225, 852 P.2d 1111 (1993); San Joaquin Cy. Emp. Ass’n v. City
of Stockton, 161 Cal. App. 3d 813, 207 Cal. Rptr. 876 (1984).
15 Id.
16 See id.

128 	284 NEBRASKA REPORTS
governing the parties’ relationship during the period of renego-
tiations, Douglas County was not excused from its obligation
to bargain for a successor agreement. The CIR properly found
that Douglas County committed a prohibited practice when it
refused to bargain on the issue of health insurance premium
increases after the expiration of the CBA.
But we do find that Douglas County’s argument that the
percentage allocation of health insurance premiums in the
CBA is the status quo is relevant to the remedy imposed by
the CIR in these appeals. As noted, the CIR ordered Douglas
County to both bargain the issue of health insurance and reim-
burse EULA members the amount of the increase in premi-
ums, plus interest. The reimbursement was based on the CIR’s
implicit determination that the term or condition of employ-
ment surviving the expiration of the CBA was the amount
EULA members were paying for health insurance premiums
when the CBA expired.
[2] Generally, when terms or conditions of employment
are in a contractual provision, the status quo is determined by
reference to the precise wording of the relevant contractual
provision, even when that provision is contained in an expired
contract.17 Here, the relevant contractual provision was con-
tained in article 12 of the CBA, which set the percentages each
party would pay for health insurance premiums. This provi-
sion unequivocally expressed the obligations of both Douglas
County and EULA members. There is no other reasonable
interpretation of the CBA, and thus the term or condition of
employment that continued in effect after expiration of the
CBA was the percentage allocations set forth in the CBA.18
Therefore, Douglas County properly paid only its fixed per-
centage of the increased premiums, and EULA members were
to continue to pay their fixed percentage as well, even when the
17 Police Benev. Ass’n, supra note 14. See, Intermountain Rural Elec. Ass’n,
supra note 14; San Joaquin Cy. Emp. Ass’n, supra note 14.
18 See, generally, Intermountain Rural Elec. Ass’n, supra note 14 (holding
contract language setting precise percentage amounts of health insurance
premiums established status quo).

EMPLOYEES UNITED LABOR ASSN. v. DOUGLAS CTY. 	129
Cite as 284 Neb. 121
premiums increased. We conclude the CIR erred when it found
the status quo was the amount of health insurance premiums
EULA members were paying at the time the CBA expired. We
reverse and vacate that portion of the order requiring Douglas
County to reimburse EULA members for the increased health
insurance premiums.
attornEy FEEs
In a cross-appeal, EULA alleges the CIR erred when it failed
to award it attorney fees. This assignment of error is limited to
case No. S-11-712, because no attorney fees were requested in
case No. S-12-121.
The CIR has the power and authority to make such find-
ings and to enter such temporary or permanent orders that
it may find necessary to provide adequate remedies to the
injured party or parties, to effectuate the public policy enun-
ciated in § 48-802, and to resolve the dispute.19 CIR rule
42(B)(2)(a) provides that “[a]ttorney’s fees may be awarded
as an appropriate remedy when the [CIR] finds a pattern of
repetitive, egregious, or willful prohibited conduct by the
opposing party.”20
In refusing to award attorney fees, the CIR found that
Douglas County’s conduct “borders on the line between repeti-
tive misconduct and overtly creative contract interpretation”
but found “no direct evidence in the record of repetitive,
egregious, or willful conduct.” It also found no evidence that
Douglas County “willfully” refused to bargain, but reasoned
that it instead mistakenly believed that it was not required
to bargain.
EULA argues that CIR precedent demonstrates Douglas
County’s persistent practice of bargaining in bad faith over
health insurance. It notes that the day after the CIR issued the
decision in this case, it found in another case an “emerging
pattern of Douglas County and its refusal to negotiate over
19 § 48-819.01.
20 See Rules of the Nebraska Commission of Industrial Relations 42 (rev.
2008).

130 	284 NEBRASKA REPORTS
mandatory subjects of bargaining.”21 EULA further argues that
on August 18, 2011, the CIR awarded attorney fees against
Douglas County based on its pattern of past practice in refus-
ing to negotiate.22 Essentially, EULA contends the CIR should
have recognized the pattern earlier and issued attorney fees in
this case as well.
The record fully supports the CIR’s decision not to award
attorney fees in this case, and we affirm the denial of attor-
ney fees.
CONCLUSION
Health insurance premiums are a mandatory subject of bar-
gaining, and Douglas County therefore had a duty to bargain
on the issue. It cannot rely on the terms of the expired CBA to
excuse it from this duty, but the percentage allocation formula
of the expired CBA constitutes the status quo after the CBA
expired and governs the parties’ obligations until a successor
agreement is reached. We affirm (1) the CIR’s determination
that Douglas County committed a prohibited labor practice in
failing to negotiate health insurance premium increases effec-
tive January 1, 2011, and (2) the CIR’s decision not to award
attorney fees. But we reverse and vacate those portions of the
CIR’s orders requiring Douglas County to reimburse EULA
members for increased insurance premiums deducted from
their wages, plus interest.
aFFirmEd in part, and in part
rEvErsEd and vacatEd.
21 International Brotherhood of Electrical Workers Local 1483 v. Douglas
County, Nebraska, No. 1245, 2011 WL 3487525 at *5 (C.I.R. July 26,
2011).
22 See Douglas Cty. Health Ctr. Sec. Union v. Douglas Cty., ante p. 109, 817
N.W.2d 250 (2012).