Scottsbluff Police Off. Assn. v. City of Scottsbluff

ScottSbluff Police officerS ASSociAtion, inc.,
f.o.P. lodge 38, APPellee , v. city of
ScottSbluff, nebrASkA, A city of
the firSt clASS, APPellAnt.
805 N.W.2d 320
Filed November 4, 2011. 	No. S-10-960.
1. Commission of Industrial Relations: Appeal and Error. Any order or decision
of the Commission of Industrial Relations may be modified, reversed, or set aside
by an appellate court on one or more of the following grounds and no other: (1)
if the commission 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 commission
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. Commission of Industrial Relations: Evidence: Appeal and Error. In an
appeal from an order by the Commission of Industrial Relations regarding prohib-
ited practices, an appellate court will affirm a factual finding of the commission
if, considering the whole record, a trier of fact could reasonably conclude that the
finding is supported by a preponderance of the competent evidence.
3. Labor and Labor Relations: Federal Acts: Statutes. Decisions under the
National Labor Relations Act are helpful in interpreting Nebraska’s Industrial
Relations Act, Neb. Rev. Stat. § 48-801 et seq. (Reissue 2010), but are not
binding.
4. Labor and Labor Relations: Contracts. Good faith bargaining includes the
execution of a written contract incorporating the terms of an agreement reached
pursuant to Neb. Rev. Stat. § 48-816(1) (Reissue 2010).
5. Labor and Labor Relations. Nebraska’s Industrial Relations Act requires parties
to negotiate only mandatory subjects of bargaining.
6. ____. Management prerogatives, such as the right to hire, to maintain order and
efficiency, to schedule work, and to control transfers and assignments, are not
mandatory subjects of bargaining under Nebraska’s Industrial Relations Act.
7. ____. A matter which is of fundamental, basic, or essential concern to an employ-
ee’s financial and personal concern may be considered as involving working
conditions and is mandatorily bargainable even though there may be some minor
influence on management prerogative.
8. Labor and Labor Relations: Insurance. Health insurance coverage and related
benefits, including health insurance exclusions, are akin to fundamental, basic, or
essential concerns to an employee’s financial and personal concern and, therefore,
may be considered as involving working conditions and are thus mandatory sub-
jects of bargaining under Nebraska’s Industrial Relations Act.
9. Commission of Industrial Relations: Labor and Labor Relations. An employer
subject to Nebraska’s Industrial Relations Act may implement unilateral changes
to mandatory subjects of bargaining only when three conditions have been met:
(1) The parties have bargained to impasse, (2) the terms and conditions imple-
mented were contained in a final offer, and (3) the implementation occurred
before a petition regarding the year in dispute is filed with the Commission
676 	282 NebRASkA RepoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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of Industrial Relations. If any of these three conditions are not met, then the
employer’s unilateral implementation of changes in mandatory bargaining topics
is a per se violation of the duty to bargain in good faith.
10. Appeal and Error. error that does not prejudice a party does not provide
grounds for relief on appeal.
Appeal 	from 	the 	Commission 	of 	Industrial 	Relations.
Affirmed in part, and in part reversed and remanded with
directions.
Jerry L. pigsley, of Harding & Shultz, p.C., L.L.o., for
appellant.
John e. Corrigan, of Dowd, Howard & Corrigan, L.L.C., for
appellee.
heAvicAn, 	c.J., 	Wright, 	connolly, 	gerrArd, 	StePhAn,
MccorMAck , and M iller-lerMAn, JJ.
gerrArd, J.
The City of Scottsbluff, Nebraska (the City), appeals from
a decision of the Nebraska Commission of Industrial Relations
(CIR), which determined that the City violated Nebraska’s
Industrial Relations Act (IRA),1 when the City implemented
changes to health insurance coverage and related benefits with-
out bargaining with the Scottsbluff police officers Association,
Inc. (the Union). The City appeals. For the following rea-
sons, we affirm in part, and in part reverse and remand with
directions.
bACkGRoUND
The Union represents Scottsbluff law enforcement officers
below the rank of captain. The City and the Union negotiate
these officers’ contracts on a year-to-year basis. past contracts
typically ran on a fiscal year basis, from october through
September of the following year. However, health insurance
premiums were determined on a calendar year basis, so past
contracts between the City and the Union contained a reopen
clause, which stated that during the term of the contract,
1 See Neb. Rev. Stat. § 48-801 et seq. (Reissue 2010).
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negotiations could be reopened for individual, specifically
defined issues, such as cost-of-living increases, salary compari-
sons and increases, and health and dental premiums.
The present dispute arose out of contract negotiations
for the october 2009 through September 2010 term. During
negotiations, the City presented several proposed changes,
including changes to the article of the contract which allowed
for the reopening of negotiations for health and dental pre-
miums each year prior to open enrollment. After several
negotiation sessions, on June 24, 2009, the parties arrived at
a tentative agreement, subject to ratification of the agreement
by the parties.
on July 30, 2009, the City adopted an amendment to its
health insurance plan which pertained to hazardous hobbies or
activities, effective August 1. The previous hazardous hobbies
or activities provision had generally excluded health insur-
ance plan coverage for injuries which resulted from hazard-
ous activities, and the provision had identified some of those
activities. The City’s amendment clarified the provision by
further defining hazardous pursuits, hobbies, and activities,
and enumerating several examples of such hazardous activities.
The examples included “ultimate fighting,” reckless operation
of machinery, all-terrain vehicle use, and travel to countries
with advisory warnings. The City did not negotiate these
changes with the Union and later stated that it did not view
the health insurance exclusion as a negotiable item. The City
informed the Union of the changes to the health insurance plan
on August 4.
on August 19, 2009, the Union ratified the agreement for
the 2009-10 term and, thereafter, informed the City of the
Union’s decision. However, according to the Union, after it
ratified the agreement, individual union members approached
the Union’s president and voiced concerns about the unilateral
changes to the hazardous hobbies or activities exclusion in the
health insurance plan. Though the Union had voted to ratify
the agreement for the 2009-10 term, the Union’s president sent
an e-mail to the City asking the City to refrain from presenting
the agreement to the city council for approval until the health
insurance exclusions could be discussed between the parties.
678 	282 NebRASkA RepoRTS

The City refused to remove the agreement from the city coun-
cil’s consideration, and the city council ratified the agreement
on September 8 and then notified the Union that the approved
contract had been signed by the mayor and was available for
the Union president’s signature. The Union’s president refused
to execute the agreement until the parties could “get the insur-
ance issues taken care of.”
The parties then met three times to discuss the health
insurance hazardous activities exclusion. However, the City
maintained that the terms of the health insurance plan were
solely within its control as long as reasonable coverage was
provided. on November 10, 2009, the City informed the Union
that the City intended to review the group insurance rates
and benefits for 2010. The Union declined to discuss those
issues without the presence of the Union’s attorney. The City
then implemented changes to the City’s health insurance plan,
including changes to the deductibles, copays, and maximum
out-of-pocket amounts. The City later admitted to implement-
ing changes in the health care benefits and hazardous activities
exclusion section because the City believed those changes to be
within its management control.
The Union then filed a petition with the CIR, alleging
that the City had violated § 48-824(1) by unilaterally imple-
menting changes in the health insurance hazardous activities
exclusion and by unilaterally changing the group health care
benefits. The City counterclaimed that the Union had violated
§§ 48-816(1) and 48-824(3)(c) when the Union failed to exe-
cute a written contract incorporating the agreement reached by
the parties for the 2009-10 term. The City also claimed that the
Union had refused to negotiate and meet with the City in good
faith to discuss calendar year increases in health and dental
premiums for 2010, in violation of §§ 48-816(1) and 48-824(1)
and (3)(c).
The CIR noted that § 48-816(1) requires parties to negoti-
ate only mandatory subjects of bargaining. Ultimately, the CIR
determined that both the health insurance exclusion and the
health care benefits were mandatory subjects of bargaining and
that the City had violated § 48-824(1) in refusing to bargain
with the Union regarding those issues. The CIR determined
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that the Union had not violated the IRA in refusing to execute
the written contract incorporating the parties’ prior agreement
for the 2009-10 term, nor had the Union refused to negotiate
the calendar year increases in health and dental premiums for
2010. The CIR ordered the City to return the parties to the sta-
tus quo ante and ordered the parties to commence good faith
negotiations within 30 days. Finally, the CIR denied the Union
attorney fees, determining that the City’s violation was not
repetitive, egregious, or willful.
ASSIGNMeNTS oF eRRoR
The City assigns, summarized and restated, that the CIR
erred when it (1) determined that the Union had not violated the
IRA when it refused to execute a written contract incorporating
an agreement ratified by the Union, (2) determined that the City
had violated the IRA by unilaterally implementing changes to
the health insurance exclusions and to health care benefits, (3)
determined that the Union had not failed to bargain in good
faith with the City over insurance premiums, and (4) considered
the Union’s request for attorney fees although the Union had
not pled for the award of such fees.
STANDARD oF RevIeW
[1] Under § 48-825(4), any order or decision of the CIR may
be modified, reversed, or set aside by an appellate court on one
or more of the following grounds and no other: (1) if the com-
mission 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 commission 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
[2] In an appeal from an order by the CIR regarding prohib-
ited practices, an appellate court will affirm a factual finding of
the CIR if, considering the whole record, a trier of fact could
reasonably conclude that the finding is supported by a prepon-
derance of the competent evidence.3
2 IBEW Local 763 v. Omaha Pub. Power Dist., 280 Neb. 889, 791 N.W.2d
310 (2010).
3 Id.
680 	282 NebRASkA RepoRTS

ANALySIS
union’S fAilure to execute AgreeMent
The City argues that the CIR erred when it determined
that the Union had not violated the IRA when the Union
refused to execute a written contract which it had previously
ratified. Section 48-824(3)(c) provides that it is a prohibited
practice under the IRA to refuse to bargain collectively with
an employer, and § 48-816(1) states that collective bargain-
ing includes the “execution of a written contract incorporating
any agreement reached if requested by either party.” The City
argues that the parties reached an agreement on June 24, 2009,
subject to ratification by the Union and city council and that
both parties later ratified the agreement; so the Union com-
mitted a prohibited practice under § 48-824(3)(c) when the
Union’s president later refused to execute the written contract
which embodied the earlier agreement.
[3,4] We have previously noted that decisions under the
National Labor Relations Act (NLRA)4 are helpful in inter-
preting the IRA, but are not binding.5 Section 48-824(3)(c) is
substantially similar to the NLRA’s § 8(b)(3), codified at 29
U.S.C. § 158(b)(3), and decisions interpreting § 8(b)(3) are
instructive. Under the NLRA, it is well established that a union
refuses to bargain collectively with an employer, in violation of
§ 8(b)(3), when the union refuses to execute a written collective
bargaining agreement reached with the employer which incor-
porates all the terms of its agreement.6 We agree. because col-
lective bargaining includes the “execution of a written contract
incorporating any agreement reached” pursuant to § 48-816(1),
the Union’s failure to execute the agreement after both parties
4 See 29 U.S.C. § 151 et seq. (2006).
5 See IBEW Local 763, supra note 2.
6 See Teamsters Local 589 (Jennings Distribution), 349 N.L.R.b. 124
(2007). See, also, H. J. Heinz Co. v. Labor Board, 311 U.S. 514, 61 S.
Ct. 320, 85 L. ed. 309 (1941); Ivaldi v. N.L.R.B., 48 F.3d 444 (9th Cir.
1995); N.L.R.B. v. Quinn Restaurant Corp., 14 F.3d 811 (2d Cir. 1994);
N. L. R. B. v. Ralph Printing & Lithographing Company, 433 F.2d 1058
(8th Cir. 1970).
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ratified that agreement constitutes a prohibited practice within
the meaning of § 48-824(3)(c).
The Union argues that the parties agreed to “ground rules”
which stated, in part: “It is agreed by the parties that all agree-
ments shall be considered as tentative, and not final, until the
execution of the final agreement or contract, unless otherwise
specified.” However, the fact that the parties agreed to ground
rules which stated that the parties’ agreements were to be con-
sidered tentative until the execution of a final agreement does
not change the scope of the parties’ statutory duty to execute
a ratified agreement pursuant to § 48-816(1). And though the
Union argues that it attempted to remove the agreement from
going before the city council for ratification, the Union had
already ratified the agreement and notified the City of the
Union’s ratification, so the City was under no duty to honor the
Union’s request to withdraw the agreement from going before
the city council for consideration.
The Union also argues that it was under no duty to execute
the ratified agreement because of the City’s unilateral change
to the insurance hazardous activities exclusion section. As will
be discussed in detail below, the City’s unilateral implementa-
tion of changes to the insurance exclusions indeed constituted
a prohibited practice under the IRA. The Union’s argument
appears to be that the City’s unilateral change to the insurance
exclusion excused the Union’s statutory duty to execute the
ratified agreement. However, the record reflects that the City’s
unilateral change to the insurance exclusion occurred before the
Union ratified the agreement, that the Union was given notice
of the unilateral change before it voted to ratify the agreement,
and that the terms of the agreement did not contain any provi-
sions pertaining to insurance exclusion provisions. So, though
the City committed a prohibited practice under the IRA when
the City unilaterally changed the scope of the insurance exclu-
sions, the Union remained under a duty to execute any agree-
ment that the parties ratified pursuant to § 48-816(1).
The undisputed evidence in the record indicates that the
Union refused to execute the parties’ ratified agreement. The
Union therefore committed a prohibited practice within the
meaning of § 48-824(3)(c), regardless of the City’s unilateral
682 	282 NebRASkA RepoRTS

changes to the insurance exclusions. The CIR’s determination
that the Union did not violate § 48-824(3)(c) when it refused
to execute the ratified agreement is therefore contrary to law.
Accordingly, we reverse the decision of the CIR with regard to
the Union’s violation of § 48-824(3)(c). because the CIR did
not determine that the Union committed a prohibited practice
when it failed to execute the ratified agreement, the CIR did
not determine what remedies might be available to the City.
We remand to the CIR to determine what, if any, remedies are
available to the City for the Union’s § 48-824(3)(c) violation.
city’S chAngeS to heAlth P lAn
The City argues that the CIR erred in determining that the
City had violated the IRA when the City unilaterally imple-
mented changes both to the design of the health insurance
plan regarding the health insurance exclusion and to the group
health care benefits regarding premiums, copays, deductibles,
and maximum out-of-pocket expenses.
[5-7] The IRA requires parties to negotiate only mandatory
subjects of bargaining.7 However, management prerogatives,
such as the right to hire, to maintain order and efficiency, to
schedule work, and to control transfers and assignments, are
not mandatory subjects of bargaining.8 A matter which is of
fundamental, basic, or essential concern to an employee’s
financial and personal concern may be considered as involv-
ing working conditions and is mandatorily bargainable even
though there may be some minor influence on management
prerogative.9
[8] The CIR has previously determined that health insurance
benefits are mandatory subjects of bargaining.10 And notably, it
is well established under the NLRA that health insurance cov-
erage and related benefits are mandatory subjects of bargaining,
7 See § 48-816(1)(b).
8 Omaha Police Union Local 101 v. City of Omaha, 274 Neb. 70, 736
N.W.2d 375 (2007).
9 Id.
10 See, Communications Workers of America v. County of Hall, 15 C.I.R. 95
(2005); F.O.P., Lodge No. 21 v. City of Ralston, NE, 12 C.I.R. 59 (1994).
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if the coverage or benefits are not provided for by statute but
are left to the discretion of the employer.11 We agree. Health
insurance coverage and related benefits, including health insur-
ance exclusions, are akin to fundamental, basic, or essential
concerns to an employee’s financial and personal concern and,
therefore, may be considered as involving working conditions.
Accordingly, we determine that health insurance coverage and
related benefits are mandatory subjects of bargaining under
the IRA.
In that regard, we do not disagree with the dissent’s sug-
gestion that the Legislature could and perhaps should decide
whether “health plan design,” such as an exclusion like the one
at issue in this case, is mandatorily bargainable or a manage-
ment prerogative. This question implicates public policy, the
declaration of which is the Legislature’s function.12 but the fact
remains that the Legislature has not spoken to the issue. And
the question must be answered, regardless of whether we have
legislative guidance.
The dissenting opinion suggests that there is a difference
between “health insurance benefits” and “health plan design”
and criticizes the authority cited above as neglecting that dis-
tinction. but the dissenting opinion counters with no authority
of its own—particularly, no authority making the distinction
the dissent suggests. Nor is that distinction particularly easy
to make. What the dissenting opinion characterizes as “health
plan design” is, in fact, the essence of health insurance benefits:
what, exactly, the insurance covers. A prudent consumer shop-
ping for insurance considers not only the bare fact of coverage,
or the cost of coverage, but the scope of coverage offered by an
insurer. The distinction between “benefits” and “design” disap-
pears if the design narrows the scope of coverage to the point
11 See Larry Geweke Ford, 344 N.L.R.b. 628 (2005). See, also, Mid-
Continent Concrete, 336 N.L.R.b. 258 (2001), enforced sub nom. N.L.R.B.
v. Hardesty Co., Inc., 308 F.3d 859 (8th Cir. 2002); F.D.I.C. v. Federal
Labor Relations Authority, 977 F.2d 1493 (D.C. Cir. 1992); Bastian-
Blessing, Div. of Golconda Corp. v. N. L. R. B., 474 F.2d 49 (6th Cir.
1973).
12 See, e.g., City of Falls City v. Nebraska Mun. Power Pool, 279 Neb. 238,
777 N.W.2d 327 (2010).
684 	282 NebRASkA RepoRTS

that benefits to the insured are lost. yet the dissenting opinion
suggests that the scope of coverage—an essential part of the
bargain in evaluating the value of an insurance policy—is out-
side the bounds of what is mandatorily bargainable.
The dissenting opinion suggests that the scope of cover-
age is too complex for such negotiation, such that it would be
“unmanageable and unrealistic” to require an employer to enter
into negotiations over all the details of coverage. Again, we do
not disagree—but we also anticipate that most of those details
would prove noncontroversial and would not require exhaustive
negotiation. And we are not in a particularly good position to
evaluate which details will be important to either employees
or employers.
We obviously agree, as the dissenting opinion suggests, that
it is prudent public policy for the City to control insurance
costs. employees certainly have an interest in that as well. but
employees also have an interest in enjoying the full range of
hobbies and recreational activities that any citizen is entitled to
pursue, including many that might involve “risk-taking,” such
as skiing, water sports, or martial arts. As with many aspects
of collective bargaining, there is a balance to be struck. And,
in the absence of a clear legislative mandate, that balance
should be struck by the parties through negotiation, not by
this court.
In short, while we agree with several of the practical con-
cerns raised by the dissenting opinion, we cannot agree with
the dissent’s conclusion that there is a meaningful difference
between the mere fact of health insurance benefits and the
“plan design” that actually describes what those benefits are.
Health insurance coverage—and the scope of that coverage—is
a meaningful and important part of an employee’s compensa-
tion and, as such, should be mandatorily bargainable. Until the
Legislature says otherwise, it is not this court’s place to decide
what aspects of that coverage are nonnegotiable.
And in this case, those negotiations did not occur. The
record clearly indicates that the City unilaterally implemented
changes to the health insurance plan exclusions and to the
group health benefits regarding premiums, copays, deduct-
ibles, and maximum out-of-pocket expenses. on appeal, the
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City argues that the Union refused to negotiate with the City
and waived the Union’s right to bargain over health insur-
ance benefits.
The record reflects that the parties never previously bargained
over health insurance benefits other than premium amounts.
but, there is no evidence contained in the record that the Union
clearly waived its right to bargain over those terms. The record
indicates that both parties were long under the misapprehen-
sion that health care benefits were not mandatory subjects of
bargaining. That misapprehension is not sufficient to establish
that the Union waived its right to collectively negotiate regard-
ing a mandatory subject of bargaining. And though the Union
committed a prohibited practice when it refused to execute the
ratified agreement, the Union’s refusal did not excuse the City
from negotiating mandatory subjects of bargaining.
[9] The first of the City’s unilateral changes—the change to
the health insurance exclusions—took place before the Union’s
refusal to execute the ratified agreement. Though the City’s
other unilateral changes occurred after the Union’s refusal, it
remains that an employer subject to the IRA may implement
unilateral changes to mandatory subjects of bargaining only
when three conditions have been met: (1) The parties have bar-
gained to impasse, (2) the terms and conditions implemented
were contained in a final offer, and (3) the implementation
occurred before a petition regarding the year in dispute is filed
with the CIR.13 If any of these three conditions are not met,
then the employer’s unilateral implementation of changes in
mandatory bargaining topics is a per se violation of the duty
to bargain in good faith.14 Here, there is no evidence in the
record that the City’s unilateral changes to the health insurance
premiums, copays, deductibles, and maximum out-of-pocket
expenses were bargained to impasse, and no evidence that they
were contained in a final offer.
The CIR determined the evidence established that the City
created the design of the plan, the plan benefits, and the
13 See IBEW Local 763, supra note 2.
14 Id.
686 	282 NebRASkA RepoRTS

contribution amounts independently from the negotiation proc-
ess. The CIR also determined that the City had presented no
evidence that the Union clearly and unmistakably waived its
right to bargain. There is competent evidence in the record to
support these determinations, and we cannot say the determina-
tions were unreasonable.
The City’s unilateral implementation to the health insurance
exclusions, premiums, copays, deductibles, and maximum out-
of-pocket expenses constituted a per se violation of the duty
to bargain in good faith, which is not excused by the Union’s
refusal to execute the ratified agreement. We therefore affirm
the CIR’s determination that the City committed a prohibited
practice by unilaterally implementing the previously mentioned
health insurance changes.
did union refuSe to bArgAin
in good fAith?
The City argues that the CIR erred when it denied the City’s
counterclaim that the Union had violated the IRA by failing to
bargain in good faith on proposed increases in health insurance
premiums. The City argues that when it refused to change the
health insurance exclusions, the Union refused to meet with it
to negotiate health and dental insurance premiums.
The City’s argument that the Union violated the IRA by fail-
ing to bargain in good faith on the proposed increases in health
insurance premiums is without merit. Given our standard of
review, the question is whether the CIR’s findings were unrea-
sonable or unsupported by competent evidence. As the CIR
determined, the record reflects that the Union did not refuse
to meet with the City to negotiate health and dental premiums,
but, rather, attempted to resolve the health insurance issues
through the use of its attorney. The City repeatedly and contin-
uously said that it was under no duty to bargain with the Union
in regard to health insurance plan exclusions or health care
benefits, other than negotiating premiums. In spite of the City’s
assertion that it was under no duty to negotiate the previously
mentioned issues, the record reflects that the Union suggested
dates and times for negotiations in an attempt to bargain with
the City. And though the record shows that the Union refused
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to negotiate without the assistance of counsel, that refusal did
not amount to a refusal to negotiate in good faith. There is
competent evidence in the record supporting the CIR’s determi-
nation that the Union did not refuse to bargain in good faith for
failing to meet to negotiate health and dental premiums, and
the CIR’s conclusion was not unreasonable.
Attorney feeS
[10] The City argues that the CIR erred in considering the
Union’s request for attorney fees, because the Union failed to
plead for such fees. The City argues that this was a violation of
CIR rule 42,15 which requires, in relevant part, that a complaint
filed for prohibited practices must include a demand for the
relief to which the party supposes itself entitled. The Union’s
petition and amended petition in fact do not contain a demand
for attorney fees. However, the issue of whether the Union
was required to plead for the award of attorney fees in order
for the CIR to award the fees is one we need not decide. The
CIR refused to award attorney fees in this case, so the City was
not prejudiced by the CIR’s consideration of the attorney fees
issue. error that does not prejudice a party does not provide
grounds for relief on appeal.16 because the City was not preju-
diced by the CIR’s consideration of attorney fees, there are no
grounds for relief available on appeal, so we do not consider
the City’s last assignment of error.
CoNCLUSIoN
because we determine that the Union’s refusal to execute
the previously ratified agreement constitutes a prohibited prac-
tice under the IRA, we reverse the order of the CIR in relevant
part. We note that the contract year at issue is past, but the
record is not clear as to what liabilities may have been incurred
during the pendency of these proceedings. It is not entirely
clear to us, from the record, how the parties would propose
15 See Rules of the Nebraska Commission of Industrial Relations 42 (rev.
2011).
16 Huber v. Rohrig, 280 Neb. 868, 791 N.W.2d 590 (2010).
688 	282 NebRASkA RepoRTS

to remedy the Union’s refusal to execute the agreement. So,
rather than simply directing the agreement to be enforced, we
remand the cause to the CIR to determine what, if any, rem-
edies are available to the City for the Union’s violation. The
portion of the CIR’s order requiring the parties to commence
good faith negotiations on the health insurance issues within 30
days is affirmed.
A ffirMed in PArt, And in PArt reverSed
And reMAnded With directionS.
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heAvicAn, C.J., concurring in part, and in part dissenting.
I join that portion of the majority’s opinion which con-
cludes the CIR erred in failing to find that the Union’s refusal
to execute the previously ratified agreement was a prohibited
practice under the IRA. I also concur with the majority that
the City is required to bargain with the Union with respect
to costs of insurance coverage, including premiums, copay-
ments, and maximum out-of-pocket amounts. but because I
would hold that health plan design, at least as presented in this
case, is a management prerogative, I disagree with the portion
of the majority opinion which orders the parties to enter into
good faith negotiations regarding that topic of bargaining. As
such, I concur in part, and in part dissent from the decision of
the court.
My first concern is that the majority opinion acknowledges
the two distinct questions presented to the court—health insur-
ance benefits and health plan design—but then reaches a
conclusion without engaging in any analysis addressing these
distinct issues. The majority simply concludes that “[h]ealth
insurance coverage and related benefits, including health insur-
ance exclusions . . . involve[] working conditions.” In reaching
this decision, the majority cites only the general proposition
that health insurance benefits are mandatory subjects of bar-
gaining, but does not discuss any cases that address the distinc-
tion at issue here.
Nor do I find the reasoning of the CIR persuasive. In its
order, the CIR noted that the issue of health plan design had
not been previously addressed by the CIR. In support of its
ultimate conclusion that the City erred in not negotiating
with regard to design, the CIR cited F.D.I.C. v. Federal Labor

Relations Authority.1 In this case, decided under the Federal
Service Labor-Management Relations Act,2 the Circuit Court of
Appeals for the District of Columbia was presented with two
health insurance related issues—the requirement that employ-
ees with family coverage pay more for coverage, as well as
a change in “open season” for enrolling for coverage. but I
find this case of limited utility. First, F.D.I.C. v. Federal Labor
Relations Authority deals with two distinct areas, one involv-
ing plan cost and the other involving plan design. yet the court
does not separately address the two issues; instead, it concludes
without much analysis that the employer should have engaged
in bargaining.
And we are not bound by federal decisions in this area. We
have held that decisions under the National Labor Relations Act
(NLRA)3 (and technically F.D.I.C. v. Federal Labor Relations
Authority was not a decision under the NLRA) are helpful in
interpreting the NLRA, but are not binding.4
More substantively, I disagree with the conclusion that health
plan design, in this case, the hazardous activities exclusion, is
mandatorily bargainable. I would instead conclude that this
exclusion is an example of a management prerogative and is
not subject to mandatory bargaining.
I agree with the majority’s view that “[a] matter which is
of fundamental, basic, or essential concern to an employee’s
financial and personal concern may be considered as involv-
ing working conditions . . . .”5 but management prerogative
excludes from mandatory bargaining certain issues, like the
right to hire, to maintain order and efficiency, and to control
transfers and assignments.6
1 F.D.I.C. v. Federal Labor Relations Authority, 977 F.2d 1493 (D.C. Cir.
1992).
2 See 5 U.S.C. § 7101 et seq. (2006 & Supp. Iv 2010).
3 See 29 U.S.C. § 151 et seq. (2006).
4 Crete Ed. Assn. v. Saline Cty. Sch. Dist. No. 76-0002, 265 Neb. 8, 654
N.W.2d 166 (2002).
5 Omaha Police Union Local 101 v. City of Omaha, 274 Neb. 70, 77-78, 736
N.W.2d 375, 382 (2007).
6 Id.
690 	282 NebRASkA RepoRTS

In my view, the exclusion at issue in this case deals primar-
ily with the employer’s right to maintain order and efficiency.
Here, the City has a police force in order to provide for public
safety. The City also has numerous other employees in a vari-
ety of roles that also provide services to the public. Like most
public employers, the City has been assigned the obligation to
provide health insurance coverage for all those employees. It is
prudent public policy for the City to both discourage employee
risk-taking and control insurance costs for both it and the indi-
viduals it employs.
The conclusion reached by the majority thwarts both man-
agement objectives. And unlike copayments and maximum
out-of-pocket payments, the cost of exclusions such as the
hazardous activities exclusion would appear to be much more
complex to calculate and will depend greatly on variables
under the control of yet another party, the health insurance
provider. Making such details subject to mandatory bargain-
ing seems unworkable. An examination of the City’s health
insurance plan includes at least 47 separate exclusions from
coverage, including controversial exclusions such as abortion.
It would be unmanageable and unrealistic to require the City to
enter into negotiations as to all of these exclusions, particularly
when one considers that the City has relationships with mul-
tiple unions and other employees. yet the majority’s conclusion
could lead to such a result.
Simply put, this is a close case. The CIR is not a court, and
it has limited jurisdiction. Notably, it has no power or authority
other than that specifically conferred on it by statute.7 Under
these circumstances, I feel the Legislature should be the last
word in whether health plan design, particularly an exclusion
such as the one at issue in this case, is mandatorily bargainable
or is a management prerogative.
For these reasons, I respectfully concur in part, and in
part dissent.
7 Central City Ed. Assn. v. Merrick Cty. Sch. Dist., 280 Neb. 27, 783 N.W.2d
600 (2010).
SCoTTSbLUFF poLICe oFF. ASSN. v. CITy oF SCoTTSbLUFF 	691
Cite as 282 Neb. 676