County of Sacramento (PERB 2043M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO COUNTY ATTORNEYS
ASSOCIATION,
Charging Party,
V.
COUNTY OF SACRAMENTO,
Respondent.
Case No. SA-CE-484-M
PERB Decision No. 2043-M
June 30, 2009
SACRAMENTO COUNTY PROFESSIONAL
ACCOUNTANTS ASSOCIATION,
Charging Party,
v.
COUNTY OF SACRAMENTO,
Respondent.
Case No. SA-CE-487-M
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
AFL-CIO, LOCAL 146,
Charging Party,
V.
COUNTY OF SACRAMENTO,
Respondent.
Case No. SA-CE-493-M
CHAUFFEURS, TEAMSTERS & HELPERS,
LOCAL 150, ·
Charging Party,
V.
COUNTY OF SACRAMENTO,
Respondent.
Case No. SA-CE-497-M

Appearances: 	Carroll, Burdick & McDonough by Gary M. Messing and Jason
H.
Jasmine,
Attorneys, for Sacramento County Attorneys Association and Sacramento County Professional
Accountants Association; Beeson, Tayer & Bodine by Matthew Morbello, Attorney, for
American Federation
of
State, County and Municipal Employees, AFL-CIO, Local 146 and
Chauffeurs, Teamsters & Helpers, Local 150; Krista C. Whitman, Supervising Deputy County
Counsel, for County
of
Sacramento; Leonard Carder by Margot A. Rosenberg, Attorney, for
United Public Employees, Local
1.
Before McKeag, Neuwald and Wesley, Members.
DECISION
NEUWALD, Member: 	These cases are before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the County
of
Sacramento (County) to a proposed
decision (attached) by an administrative law judge (ALJ). These consolidated cases alleged
that the County unilaterally changed the eligibility criteria for current employees-future
retirees' participation in the Retiree Health Insurance Program (RHIP)/Retiree Medical and
Dental Insurance Program (RMDIP) by discontinuing subsidies for medical and dental
insurance for employees retiring after June
1,
2007, in violation
of
the Meyers-Milias-Brown
Act (MMBA). 1 The ALJ found that the County unilaterally changed a policy within the scope
of
bargaining without meeting its obligation to negotiate with four exclusive representatives,
Sacramento County Attorneys Association, Sacramento County Professional Accountants
Association, American Federation
of
State, County and Municipal Employees, AFL-CIO,
Local 146, and Chauffeurs, Teamsters, and Helpers, Local 150 (hereafter collectively referred
to as "Associations/Unions").
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
specified, all statutory references herein are to the Government Code.
2

The Board reviewed the entire record in these consolidated cases, including the unfair
practice charges, unfair practice complaints, the stipulated record
of
33
undisputed/stipulated
facts and 43 joint exhibits, the ALJ's proposed decision, the County's statement
of
exceptions,
the Associations' /Unions' responses thereto, and the parties' briefs. Based upon this review,
the Board adopts the proposed decision as the decision
of
the Board itself consistent with the
discussion below.
DISCUSSION
The Board notes that the only case cited in the County's exceptions that was not in its
post-hearing brief to the ALJ is Courier-Journal (2004) 342 NLRB No. 113. The case is
offered to show that there is no enforceable past practice by the County in providing the
subsidies because the amount
of
the benefit had changed many times since 1980, generally
increasing but also decreasing several times. 	The case is distinguishable because the contract
language authorized the employer to make changes in health care premiums during the
contract, and the employer had a past practice for more than ten years
of
making such changes
during the successive contracts and hiatus periods between contracts. Here, a 27-year
past
practice
of
awarding retiree heaith subsidies was uniiaterally discontinued.
PERB possesses broad discretion to take action and issue orders as necessary to
effectuate the purposes and policies
of
the MMBA. (MMBA § 3509.) In carrying out this
statutory mandate, PERB is authorized to issue a decision and order directing an offending
party to cease and desist from the unfair practice. (Id.) In addition to a cease and desist order,
PERB has the authority and long standing practice
of
ordering a restoration
of
the status quo
ante for unilateral change violations. (County
of
Sacramento (2008) PERB Decision
No. 1943-M.) This is typically accomplished by requiring the employer to rescind the
3

unilateral change and make employees whole for losses suffered as a result of the unlawful
unilateral change. 2
In the present case, the Board finds that the County committed an unfair labor practice.
Specifically, the County unilaterally implemented the changes in eligibility to participate in the
RHIP/RMDIP without fulfilling its obligation to bargain in good faith with the exclusive
representative. 	Thus, the Board orders the County to rescind the unilateral change and return
to the status quo as it would have been had the policy not been implemented effective June 1,
2007. Further, in order to mitigate the consequences of that action, the Board orders the
County to make whole all those impacted by the unlawful change, plus interest at the legal
rate.
ORDER
Upon the foregoing findings of facts, conclusions of law, and the entire record in these
consolidated cases, it is found that the County of Sacramento (County) violated the Meyers-
Milias-Brown Act (MMBA), Government Code sections 3503, 3505 and 3506, and Public
Employment Relations Board (PERB) Regulation 32603(a), (b) and (c) (Cal. Code Regs., tit. 8,
§ 31000 et seq.).
Pursuant to Government Code sections 3509(a) and 3541.5(c), it is hereby ORDERED
that the County and its representatives shall:
2 The County argues that PERB cannot order a make whole remedy because it lacks
jurisdiction over retirees. However, in Holtville Unified School District (1982) PERB
Decision No. 250, two teachers forced into retirement pursuant to a unilaterally implemented
mandatory retirement policy were awarded back salary they would have received as re-
employed year-to-year teachers from the time they retired, offset by retirement benefits. In
Corning Union High School District (1984) PERB Decision No. 399, the make whole remedy
was time off corresponding to extra hours worked, and equivalent monetary_ compensation for
teachers no longer employed by the district. Consequently, the County's argument is rejected.
4

A.	
CEASE AND DESIST FROM:
1.	
Unilaterally implementing the June
5,
2007 changes in eligibility for
current employees-future retirees to participate in the Retiree Health Insurance Program
(RHIP)/Retiree Medical and Dental Insurance Program (RMDIP) without fulfilling its
obligation to bargain in good faith with the four exclusive representatives.
2.	
Denying the Sacramento County Attorneys Association (SCAA), the
Sacramento County Professional Accountants Association (SCP AA), the American Federation
of
State, County and Municipal Employees, AFL-CIO, Local 146 (AFSCME) and the
Chauffeurs, Teamsters, and Helpers, Local 150 (Teamsters) their rights
to
represent bargaining
unit employees by failing and refusing to meet and negotiate with the exclusive representatives
about matters within the scope
of
representation as defined by MMBA section 3504, with
particular reference to the modification
of
future retiree health benefits.
3.	
Interfering with unit employees' rights to be represented by their
exclusive representatives in meeting and negotiating with the County on matters within the
scope
of
representation.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
I. 	Rescind the changes in eligibility to participate in the RHIP /RMD IP
adopted on June
5,
2007.
2. 	Make whole all those affected by the June
5,
2007 changes in eligibility
for lost benefits, monetary and otherwise, plus interest at the rate of seven percent per annum.
3. 	Within ten ( 10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations in the County where notices to employees are
customarily are posted, copies of the Notice attached hereto as an Appendix. The Notice must
5

be signed by an authorized agent of the County, indicating that the County will comply with
the terms of this Order. 	Such posting shall be maintained for a period of thirty (30)
consecutive workdays. 	Reasonable steps shall be taken to ensure that the Notice is not reduced
in size, altered, defaced, or covered with any other material.
4. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of PERB, or the General Counsel's designee. The County
shall provide reports, in writing, as directed by the General Counsel or his/her designee. 	All
reports regarding compliance with this Order shall be concurrently served on SCAA, SCP AA,
AFSCME and the Teamsters.
Members McKeag and Wesley joined in this Decision.
6

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. SA-CE-484-M, Sacramento County
Attorneys Association
v.
County
of
Sacramento; Case No. SA-CE-487-M, Sacramento County
Professional Accountants Association
v.
County
of
Sacramento; Case No. SA-CE-493-M,
American Federation
of
State, County, and Municipal Employees, AFL-CIO, Local 146
v.
County
of
Sacramento; and Case No. SA-CE-497-M, Chauffeurs, Teamsters, & Helpers,
Local 150
v.
County
of
Sacramento, in which all parties had the right to participate, it has been
found that the County
of
Sacramento (County) violated the Meyers-Milias-Brown Act
(MMBA), Government Code sections 3503, 3505 and 3506, and Public Employment Relations
Board Regulation 32603, subdivisions (a), (b) and (c) (Cal. Code Regs., tit.
8,
§ 31000 et seq.).
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Unilaterally implementing the June
5,
2007 changes in eligibility for
current employees-future retirees to participate in the Retiree Health Insurance Program
(RHIP)/Retiree Medical and Dental Insurance Program (RMDIP) without fulfilling its
obligation to bargain in good faith with the four exclusive representatives.
2. 	Denying the Sacramento County Attorneys Association, the Sacramento
County Professional Accountants Association, the American Federation
of
State, County and
Municipal Employees, AFL-CIO, Local 146, and the Chauffeurs, Teamsters, and Helpers,
Local 150 their rights to represent bargaining unit employees by failing and refusing to meet
and negotiate with the exclusive representatives about matters within the scope
of
representation as defined by MMBA section 3504, with particular reference to the modification
of
future retiree health benefits.
3. 	Interfering with unit employees' rights to be represented by their
exclusive representatives in meeting and negotiating with the County on matters within the
scope
of
representation.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1.	
Rescind the changes in eligibility to participate in the RHIP/RMDIP
adopted on June 5, 2007.

2.	
Make whole all those affected by the June
5,
2007 changes in eligibility
for lost benefits, monetary and otherwise, plus interest at the rate
of
seven percent per annum.
Dated: 	COUNTY OF SACRAMENTO
By:
-------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST
NOT
BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO COUNTY ATTORNEYS
ASSOCIATION,
Charging Party,
v.
COUNTY OF SACRAMENTO,
Respondent.
PROPOSED DECISION
(May 30, 2008)
UNFAIR PRACTICE
CASE NO. SA-CE-484-M
SACRAMENTO COUNTY PROFESSIONAL
ACCOUNTANTS ASSOCIATION,
Charging Party,
v.
COUNTY OF SACRAMENTO,
Respondent.
UNFAIR PRACTICE
CASE NO. SA-CE-487-M
CHAUFFEURS, TEAMSTERS & HELPERS,
LOCAL 150,
Charging Party,
V.
COUNTY OF SACRAMENTO,
Respondent.
UNFAIR PRACTICE
CASE NO. SA-CE-497-M
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
ALF-CIO, LOCAL 146,
Charging Party,
V.
COUNTY OF SACRAMENTO,
Respondent.
UNFAIR PRACTICE
CASE NO. SA-CE-493-M

Appearances: 	Carroll, Burdick & McDonough, by Jason Jasmine, Attorney for Sacramento
County Attorneys Association and Sacramento County Professional Accountants Association;
Beeson, Tayer & Bodine, by Matthew Morbello, Attorney for American Federation of State,
County and Municipal Employees Local 146 and Chauffeurs, Teamsters and Helpers Local
150; Krista Whitman, Supervising Deputy County Counsel for the County of Sacramento.
Before Bernard McMonigle, Chief Administrative Law Judge.
In this case, public employee unions allege that a public employer violated its
obligation to bargain when it unilaterally discontinued a retirement medical benefit for
employees who retired after June 1, 2007. The employer denies committing an unfair practice.
PROCEDURAL HISTORY
On May 11, 2007, the United Public Employees Local 1 (UPE) filed an unfair practice
charge (SA-CE-477-M) against the County of Sacramento (County). 	On August 17, 2007, the
Office of the General Counsel of the Public Employment Relations Board (PERB) issued a
complaint alleging that the County had violated the Meyers-Milias-Brown Act (MMBA or
Act) 1 when it eliminated a medical and dental insurance subsidy for current employees without
meeting and conferring in good faith with their exclusive representative.2
Over several months, similar unfair practice charges were filed by five additional
employee organizations that exclusively represent other bargaining units. In each case the
PERB Office of the General Counsel issued complaints similar to that in the UPE matter.
On July 3, 2007, an unsuccessful informal settlement conference was conducted
between the County and UPE. 	Settlement conferences were waived in the other cases.
1 MMBA is codified at Government Code section 3500 et seq.
2 The complaint alleges that through its action, the County violated Government Code
section 3505 and PERB Regulation 32603(c).
2

On
August 30, 2007, the County made a motion to consolidate the cases. Because the
four matters herein would be heard on identical facts, they were consolidated for a formal
hearing
on
January 10, 2008.
Two cases (including the UPE matter) required additional testimony and exhibits
not
common to the others. Accordingly, they were not consolidated but were heard on January 10
and January 11, 2007.
All briefs were served February 29, 2008, and the matters submitted.
FACTS
At
the hearing, the parties presented a Statement
of
Undisputed/Stipulated Facts
and
an
agreed upon set
of
joint exhibits. The facts are as follows.
The County
of
Sacramento ("County") is a California county and
a public agency as defined by Government Code section 3501(c)
and an employer
of
public employees as defined by Government
Code section 350l(d).
United Public Employees, Local 1 ("UPE") is the recognized
exclusive bargaining representative for two bargaining units: the
Welfare Non-Supervisory Unit and the Office-Technical Unit.
American Federation
of
State, County & Municipal Employees,
, A.FL-CIO, Local 146 ("AFSCME") is the recognized exclusive
bargaining representative for the Health Services Unit.
Sacramento County Attorneys Association ("SCAA'') is the
recognized exclusive bargaining representative for non-
supervisory and supervisory attorneys working in the offices
of
the District Attorney, the Public Defender and the Department
of
Child Support Services.
Sacramento County Professional Accountants Association
("SCP AA") is the recognized exclusive representative for non-
supervisory accountants and auditors employed by the County.
Chauffeurs, Teamsters & Helpers, Local 150 ("Teamsters") is the
recognized exclusive bargaining representative for the General
Supervisory Unit.
3

SEIU Local 1021 ("SEIU") is the recognized exclusive
bargaining representative for the Welfare Supervisory Unit.
Employee relations between UPE, AFSCME, SCAA, SCP AA,
Teamsters, SEIU and the County are governed by the Meyers-
Milias-Brown Act (Government Code section 3500 et seq.).
UPE, AFSCME, SCAA, SCP AA, Teamsters and SEIU are parties
to valid memoranda of understanding with the County with terms
of July 1, 2006 through June 30, 2011 ("MOU").
Since 198_0, based on annual determinations of the Board of
Supervisors, eligible County retirees have been provided with
access to group medical and dental plans and to a health
insurance offset to assist them with the purchase of medical and
dental insurance.
Since 1993, "excess earnings" from the SCERS system have been
used as a funding source for retiree medical and dental insurance
benefits. The funding source changed in 2003, at which time the
County began to fund the program via allocated charges to all
County departments.
The Retiree Medical and Dental Insurance Program Administrative
Policy in effect for the year 2006 provided that offset payments to
retirees are calculated based on the retiree's service credit. As of
January 2006, the eligibility criteria for participation in the
County's Retiree Health Insurance Program was as follows:
Individuals who leave active employment with at
least 10 years of service in SCERS, or due to
industrial or non-industrial disability regardless of
years of service, are eligible to participate in the
Retiree Health Insurance Program.
On or about January 26, 2006, the County forwarded a written
notice to all County bargaining units advising that the
Sacramento County Board of Supervisors ("Board") would be
holding a public hearing on January 31, 2006 to consider
proposed changes to the County's Retiree Health Insurance
Program for calendar year 2007. While the County proposed to
maintain the existing level of medical offset payments to retirees
for calendar year 2007, the County proposed changes in the
eligibility requirements for current employees who could
participate in the County's Retiree Health Insurance Program after
January 1, 2007.
4

The SCAA and the SCP AA sent letters to the County's Director
of Labor Relations on March 22, 2006 contending that the
proposed changes in the Retiree Health Insurance Program for
current SCAA and SCP AA represented employees who will retire
after January 2007 were within the scope ofrepresentation, and
requested to meet and confer over the matter. The SCAA and the
SCP AA also advised the County of their requests to bargain for
new contracts, and that proposals pertaining to a Retiree Health
Insurance Program should be presented in the context of those
negotiations.
The County responded to the SCAA and SCP AA March 22 letters
on April 19, 2006 advising that the policy relates to benefits
which are peculiar to retirees, and thus is not subject to
mandatory bargaining and has never been made the subject of
permissive bargaining. The County further stated the "County is
not willing to bargain the subject matter."
On March 28, 2006, the County Board of Supervisors approved
changes to the Retiree Health Insurance Program for 2007, to
limit eligibility to:
Any Annuitant who left County employment on or
after January 1, 2007, having worked for at least
10 years in SCERS-covered employment, and
having attained at least 60 years of combined age
and service prior to January 1, 2007, and who
begins receiving SCERS pension payments within
120 days of leaving SCERS-covered employment;
or any Annuitant retiring on or after January 1,
2007 who is granted a service-connected disability
retirement from SCERS, regardless of years of
service.
In April 2006, SCAA and SCP AA filed unfair practice charges
with PERB, alleging that the County was obligated to meet and
confer with the unions prior to adopting the 2007 Retiree Health
Insurance Program. PERB subsequently issued complaints.
During the spring and summer of 2006, the County engaged in
bargaining with SCAA and SCP AA for successor contracts. The
County proposed, and SCAA and SCP AA agreed to new retiree
medical savings accounts. 	SCAA and SCP AA made proposals
regarding retiree health benefits, which were rejected by the
County. New contracts were ratified by SCAA and SCP AA and
approved by the Board of Supervisors.
5

During the spring and summer of 2006, the County engaged in
bargaining with AFSCME for a successor contract. The County
proposed, and AFSCME agreed to, new retiree medical savings
accounts. 	The County and AFSCME did not discuss the Retiree
Health Insurance Program during negotiations. The contract was
ratified by AFSCME by a vote held on December 6-8, 2006, and
approved by the Board of Supervisors on December 12, 2006.
During the spring and summer of 2006, the County engaged in
bargaining with the Teamsters for a successor contract. The
County proposed, and the Teamsters agreed to, new retiree
medical savings accounts. 	The County and the Teamsters did not
discuss the Retiree Health Insurance Program during
negotiations. The contract was ratified by the Teamsters on
October 26, 2006 and approved by the Board of Supervisors on
November 14, 2006.
On September 12, 2006, the Board of Supervisors approved a
revised Retiree Health Insurance Program for 2007, which
returned to the 2006 eligibility requirements, deleting the
provisions that affect current employees who retire on or after
January 2, 2007.
On December 27, 2006, the County sent a letter to its employee
organizations informing them that the County Executive would
recommend to the Board of Supervisors that it discontinue the
retiree health subsidy for all retirees retired on or after January 1,
2008, and for certain previously retired annuitants. The letter
contained an offer to meet and confer with the employee
organizations on January 10, 2007.
A meeting to discuss the changes was scheduled for January I 0,
2007, and the County also offered to schedule individual sessions
to discuss implementation of its proposed change. UPE requested
to meet and the County met with UPE on February 28, 2007, and
April 10, 2007. AFSCME requested to meet and the County met
with AFSCME on April 11, 2007. 	SCAA and SCPAA requested
to meet and the County met with SCAA on February 13, 2007.
Teamsters never requested to meet with the County. 	SEIU
requested to meet and the County and SEIU met on January 25,
2007.
On January 24, 2007, Administrative Law Judge Christine
Bologna issued a proposed decision, holding that the unfair
practice complaints filed on behalf of SCAA and SCP AA were
moot because the County had returned to the status quo ante.
SCAA and SCP AA filed exceptions to the proposed decision,
which are still pending before PERB.
6

At the January 30, 2007 meeting of the Board of Supervisors, the
County Executive recommended that the Board continue
subsidizing medical coverage for retirees that retired prior to June
29, 2003 "subject to the meet and confer process with recognized
employee organizations" and direct staff to return with an
actuarial analysis of four retiree medical and dental insurance
program options for the year 2008.
On April 17, 2007, the County withdrew both its offer to
negotiate the subject matter and its offer on the retiree health
subsidy.
On June 5, 2007, the Board adopted its Retiree Medical and
Dental Insurance Program for 2008. The policy provides that
participants who retired on or before May 31, 2007, will continue
to receive the subsidy, but the subsidy is eliminated for all
participants who retire after May 31, 2007.
UPE, AFSCME, Teamsters, SCAA, SCP AA and SEIU have at all
times relevant to this complaint been ready and willing to meet
with the County to meet and confer regarding the Policy and
funding alternatives for retiree medical and dental benefits.
ISSUE
Did the County violate its obligation to bargain on June 5, 2007, when it made a
unilateral change in the retirement medical and dental insurance program for current
employees retiring after June 1, 2007?
CONCLUSIONS OF LAW
In determining whether a party has violated its obligation to bargain in good faith,
PERB utilizes either the "per se" or "totality of the conduct" test, depending on the specific
conduct involved and the effect of such conduct on the negotiating process. (Stockton Unified
School District (1980) PERB Decision No. 143.)
Unilateral changes are considered "per se" violations if certain criteria are met. 	Those
criteria are: 	(1) the employer implemented a change in policy concerning a matter within the
scope ofrepresentation, and (2) the change was implemented before the employer fulfilled its
7

obligation to bargain. (Vernon Fire Fighters v. City
of
Vernon (1980) 107 Cal.App.3d 802;
Walnut Valley Unified School District (1981) PERB Decision No. 160; San Joaquin County
Employees Association v. City
of
Stockton (1984)
161
Cal.App.3d 813; Grant Joint Union
High School District (1982) PERB Decision No. 196.)
Thus, an employer may not make a change in a subject within the scope
of
bargaining
prior to exhausting prospects for an agreement and reaching a genuine impasse. 	(SanJoaquin
County Employees Assn.
v.
City
of
Stockton, supra,
161
Cal.App.3d 813; Modesto City
Schools (1983) PERB Decision No. 291.) The obligation to bargain in good faith does
not
compel agreement or require concession, but it does require an honest effort to come to terms.
iliLRB
v. Truitt Mfg. Co. (1956) 351 U.S. 149.) As the Court stated in Public Employees
Assn. v. Board
of
Supervisors (1985) 167 Cal.App.3d 797, 805:
Moreover, the mere fact that County adamantly insisted on its
bargaining position
...
does not suffice to render it guilty
of
refusal to bargain. (Wal-Lite Division
of
United Gypsum
Co.
v.
N.L.R.B. (8th Cir. 1973) 484 F.2d 108,111.) The law merely
requires the parties to maintain a sincere interest in reaching
agreement.
Here, the County does not contend that it completed negotiations prior to making
the
change in the retirement health insurance plan on June 5, 2007. 3 Rather, the County argues the
change was outside the scope
of
bargaining because only retirees were affected and they have
no bargaining rights under the MMBA.
It is clear that the facts would not support such a theory. On December 27, 2006, the
County sent a letter to employee organizations stating its intent to discontinue the retiree health
subsidy for employees retiring after a certain date. 	That letter contained an offer to meet and
confer. A few meetings were held but little bargaining took place. On April 17, 2007, the
County Director
of
Labor Relations Steve Lakich sent all employee organizations a withdrawal
of the County's offer to negotiate "a permissive subject of bargaining."
8

It is important to clarify the issue before PERB. This case is not about retiree
bargaining rights. 4 The Board long ago determined that retirees are not protected by the Act as
they are not persons "employed by" the public employer. (San Leandro Unified School
District (1984) PERB Decision No. 450.) Accordingly, a public employer is not required to
bargain over their health insurance benefits. (Madera Unified School District (2007) PERB
Decision No. 1907.)
Current employees, however, do have bargaining rights protected by the MMBA. 	Their
future retirement benefits, including retirement health benefits, are mandatory subjects of
bargaining. 	(Madera Unified School District, supra, PERB Decision No. 1907.) In making
this determination, the Board followed long established principles originally developed under
the National Labor Relations Act (NLRA). (Jefferson School District (1980) PERB Decision
No. 133; Temple City Unified School District (1989) PERB Decision No. 782.)
In Allied Chem. & Alkali Workers, Local Union No. 1 v. Pittsburgh Plate Glass Co.
(1971) 404 U.S. 157 (Pittsburgh Plate Glass), the U.S. Supreme Court addressed retirement
health benefits for current employees,
To be sure, the future retirement benefits of active workers are
part and parcel of their overall compensation and hence a well-
established statutory subject of bargaining.
The Court reasoned that, by exercising collective bargaining rights, current employees
can establish preferences for compensation. Priorities can be set between increasing present
income or greater certainty in retirement benefits, including health insurance.
Nor does this case address the vesting rights of retirees.
Compare to the case cited by the County, NLRB v. Wonder State Mfg. Co. (8th Cir.
1965) 344 F.2d 210. There, a bonus had been awarded in only 3 of 5 years. Lacking was the
consistency and regularity of practice of over 20 years found here.
9

Since Pittsburgh Plate Glass, the NLRB has continued to hold retirement insurance
benefits for current employees within the scope
of
bargaining. In Titmus Optical Co. (1973)
205 NLRB 974, an employer unilaterally determined that it would not provide a life insurance
plan for employees who retired after a certain date, and shortly thereafter the benefit was also
eliminated for current retirees. 	While no stated obligation to continue the insurance in
retirement was contained in the collective bargaining agreement, it had been established by
years
of
past practice. The NLRB held that the employer had an obligation to bargain over the
change in a retirement insurance coverage for current employees.
More recently, the NLRB considered a case in which the employer announced and
implemented a cutoff date for significant changes in future retirement medical benefits.
(Midwest Power Systems, Inc. (1997) 323 NLRB 404.) A year prior to January
1,
1993, the
employer notified active employees
of
the changes applicable to those retiring after that date.
A provision in the medical plan documents stated:
In making these benefits available to retirees, while [employer]
expects to continue them indefinitely, specifically retains the
right to change the benefits, change the requirements for
eligibility, or eliminate the plans altogether at any time without
prior notice and this booklet does not constitute a contract or
promise by [employer] to continue benefits.
The NLRB determined that the disclaimer did not relieve the employer
of
its obligation
to bargain changes in the plan affecting current employees. There was no evidence that the
union had waived its right to bargain the changes. The NLRB ordered the reinstatement
of
retirement medical benefits for those who were active employees at the time the benefit was
unilaterally changed.
With its brief here, the County contends this case is unlike Midwest Power Systems,
stating "[t]he policy at issue
...
was adopted on June 5, 2007, and only applies to those who
10

retired on or after June
1,
2007. Thus, it was not a prospective change in retirement benefits
subject to a meet and confer requirement." This
is
an argument I find difficult to follow and
do
not accept. First, on June 5 the County made a change which was prospective for all those
currently employed on that date. Additionally, as the effective date
of
the change was June
1,
I
find that it was a prospective change for all employed at that time.
The County also contends that the Retiree Medical and Dental Insurance Program
is
a gift rather than an established policy that requires bargaining. That this program
is
a past
practice on a matter within the scope
of
bargaining was recently determined by the Board itself
in County
of
Sacramento (2008) PERB Decision No. 1943-M. There, the Board found
that
the
County made an unlawful unilateral change in policy in 2006 when it announced a different
eligibility adjustment affecting current employees in the same program. 	Implicit in that
decision is the established principle that a binding policy may be established through a
consistent course
of
conduct that is "historic and accepted practice." (Pajaro Valley Unified
School District (1978) PERB Decision No. 51.) The future benefit for current employees at
issue here has been in effect since 1980.6
The County also argues that the annual reservation clause it placed in its administrative
policy for the plan created a right to change or terminate the plan without bargaining. 7
However, the County has not demonstrated that the unions waived their right to negotiate
changes in the plan on behalf
of
current employees.
Waiver
of
the right to bargain must be "clear and unmistakable." (Amador Valley Joint
Union High School District (1978) PERB Decision No. 74.) It will not be lightly inferred and
any doubts must be resolved against the party asserting it. 	(Placentia Unified School District
7 In relevant part, the 2007 disclaimer states, "This policy is effective solely for the
calendar year 2007. It does not create any contractual, regulatory, or other vested entitlement
to present or future retirees." 
11

(1986) PERB Decision No. 595.) There is no contractual provision or other writing that
demonstrates union acceptance of the reservation clauses. Waiver by conduct requires facts
establishing that the subject was fully discussed, explored during negotiations, and the waiving
party clearly yielded its interest in the matter. (Compton Community College District (1989)
PERB Decision No. 720.) A statement by an employer that it may unilaterally change a
mandatory subject of bargaining does not establish a waiver by the union. Waiver of the right
to bargain is absent here.
For the reasons discussed, I find the Retiree Medical and Dental Insurance Program is
an established past practice that provides a future benefit for current employees. It is a subject
within the scope of bargaining and a change in employee eligibility for the program cannot be
made by unilateral action. Bargaining in good faith is required. The County of Sacramento
violated its obligation to bargain under MMBA section 3505 when it made a unilateral change
in its retiree medical insurance program on June 5, 2007. I also conclude that by the same
conduct, the County violated section 3503 by denying employee organizations their right to
represent their members and violated section 3506 by interfering with the rights of employees
to be represented by their emploJ'ee organization.
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, it has been found that the County of Sacramento (County) violated the Meyers-Milias-
Brown Act (Act). The County breached its duty to meet and confer in good faith with the
Sacramento County Attorneys Association, Sacramento County Professional Accountants
Association, Teamsters Local 150 and American Federation of State County and Municipal
Employees Local 146 (Employee Organizations) in violation of Government Code section
3505 and PERB Regulation 32603(c) when it unilaterally implemented changes in the Retiree
12

Medical and Dental Insurance Program for the year 2008. By this conduct, the County also
interfered with the right
of
County employees
to
participate in activities
of
an employee
organization
of
their own choosing, in violation
of
Government Code 3506 and PERB
Regulation 32603(a), and denied the Employee Organizations their right to represent
employees in their employment relations with a public agency, in violation
of
Government
Code section 3503 and PERB Regulation 32603(b).
Pursuant to section 3509, subdivision (a)
of
the Government Code, it hereby
is
ORDERED that the County, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Unilaterally implementing the June
5,
2007, changes in eligibility
of
employees for the Retiree Medical and Dental Program without fulfilling its obligation to
bargain with the Employee Organizations prior notice and opportunity to bargain.
2.	
Interfering with bargaining unit members' right to participate in the
activities
of
an employee organization
of
their own choosing.
3. 	Denying Employee Organizations their right to represent employees in
their employment relations with the County.
B. 	TAKING THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT.
1.	
Rescind the changes in eligibility
of
employees for the Retiree Medical
and Dental Program made on June 5, 2007.
2. 	Make whole all employees affected by the June 5, 2007, changes
in
eligibility for lost benefits, monetary and otherwise, plus interest at the rate of 7 percent per
annum.
13

3. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations in the County, where notices to employees customarily are posted,
copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the County, indicating that the County will comply with the terms of this
Order. 	Such posting shall be taken to ensure that the Notice is not reduced in size, altered,
defaced or covered with any other material.
4. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on the Sacramento County Attorneys Association, Sacramento
County Professional Accountants Association, Teamsters Local 150 and American Federation
of State County and Municipal Employees Local 146.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
14

A document is considered "filed" when actually received during a regular PERB
business day. 	(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130; see also Government Code
sec. 11020(a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135(d),
provided the filing party also places the original, together with the required number of copies
and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
15
Bernard McMonigle
Administrative Law Judge