County of Sacramento (PERB 2044M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED PUBLIC EMPLOYEES, LOCAL
1,
Charging Party,
V.
COUNTY OF SACRAMENTO,
Respondent.
Case No. SA-CE-477-M
PERB Decision No. 2044-M
June 30, 2009
Appearances: 	Leonard Carder by Margot
A.
Rosenberg, Attorney, for United Public
Employees, Local
1;
Krista
C.
Whitman, Supervising Deputy County Counsel, for County
of
Leonard Carder by Margot A. Rosenberg, Attorney, for United Public
Employees, Local 1; Krista C. Whitman, Supervising Deputy County Counsel, for County of
Sacramento.
Before McKeag, Neuwald and Wesley, Members.
DECISION
NEUW ALD, Member: This case is 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). This case 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
1 MMBA is codified at Government Code section 3500 et seq. Unless otherwise
specified, all statutory references herein are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED PUBLIC EMPLOYEES, LOCAL 1,
Charging Party, 	Case No. SA-CE-477-M
V . 	PERB Decision No. 2044-M
June 30, 2009	COUNTY OF SACRAMENTO,
Respondent.
Appearances:
Sacramento.
Before McKeag, Neuwald and Wesley, Members.
DECISION
NEUWALD, Member: This case is 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). This case 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).' The ALJ
found that the County unilaterally changed a policy within the scope of bargaining without
MMBA is codified at Government Code section 3500 et seq. Unless otherwise
specified, all statutory references herein are to the Government Code.

meeting its obligation to negotiate with exclusive representative United Public Employees,
Local 1 (UPE).
The Board reviewed the entire record in this case, including the unfair practice charge,
unfair practice complaint, the stipulated record
of
33
undisputed/stipulated facts and 43 joint
exhibits, nine charging party exhibits, the ALJ's proposed decision, the County's statement
of
exceptions, UPE's response thereto, and the parties' briefs. Based upon this review, the Board
adopts the proposed decision as the decision
of
the Board itself subject to the following
discussion.
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 health subsidies was unilaterally 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
2
meeting its obligation to negotiate with exclusive representative United Public Employees,
Local 1 (UPE).
The Board reviewed the entire record in this case, including the unfair practice charge,
unfair practice complaint, the stipulated record of 33 undisputed/stipulated facts and 43 joint
exhibits, nine charging party exhibits, the ALJ's proposed decision, the County's statement of
exceptions, UPE's response thereto, and the parties' briefs. Based upon this review, the Board
adopts the proposed decision as the decision of the Board itself subject to the following
discussion.
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 health subsidies was unilaterally 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
2

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
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 this
case, 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.).
T 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.
3
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
unilateral change and make employees whole for losses suffered as a result of the unlawful
unilateral change.
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 this
case, 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.).
he 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.

Pursuant to Government Code sections 3509(a) and 3541.5(c), it
is
hereby ORDERED
that the County and its representatives shall:
A. 	CEASE AND DESIST FROM:	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
Local 1 (UPE).
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 exclusive representative, United Public Employees,
Local 1 (UPE).
2.	
Denying UPE its right to represent bargaining unit employees by failing
and refusing to meet and negotiate about matters within the scope
of
representation
as
defined
by MMBA section 3504, with particular reference to the modification
of
future retiree health
benefits.	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
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:
TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
l. 	Rescind the changes in eligibility to participate in the RHIP/RMDIP	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.
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 are customarily are
posted, copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
4
Pursuant to Government Code sections 3509(a) and 3541.5(c), it is hereby ORDERED
that the County and its representatives shall:
A.
1 .
obligation to bargain in good faith with the exclusive representative, United Public Employees,
2 . 	Denying UPE its right to represent bargaining unit employees by failing
and refusing to meet and negotiate about matters within the scope of representation as defined
by MMBA section 3504, with particular reference to the modification of future retiree health
3.
scope of representation.
B.
1 .
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 are 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
the
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 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 UPE.
5	un
Members McKeag and Wesley joined in this Decision
authorized agent of the County, indicating that the County will comply with the terms of the
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 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 UPE.
Members Mckeag and Wesley joined in this Decision

APPENDIX	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-477-M, United Public Employees,
Local 1
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 (PERB) 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:
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 exclusive representative, United Public Employees,
Local 1 (UPE).
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 exclusive representative, United Public Employees,
Local 1 (UPE).
2. 	Denying UPE its right to represent bargaining unit employees by failing
and refusing to meet and negotiate with the exclusive representative about matters within the
scope of representation as defined by MMBA section 3504, with particular reference to the
modification of future retiree health benefits.
Denying UPE its right to represent bargaining unit employees by failing
and refusing to meet and negotiate with the exclusive representative 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 representative in meeting and negotiating with the County on matters within
thescope
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.
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:
---------------
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, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
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-477-M, United Public Employees,
Local 1 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 (PERB) Regulation 32603, subdivisions (a), (b) and (c) (Cal. Code Regs., tit. 8, $ 31000
et seq.).
1 .
2 .
3 . 	Interfering with unit employees' rights to be represented by their
exclusive representative in meeting and negotiating with the County on matters within the
scope of representation.
B.
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:
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, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED PUBLIC EMPLOYEES, LOCAL 1,
Charging Party,
V.
COUNTY OF SACRAMENTO,
Respondent.
PROPOSED DECISION
(June 13, 2008)
UNFAIR PRACTICE
CASE NO. SA-CE-477-M
Appearances: 	Leonard Carder, LLP, by Margot A. Rosenberg, Attorney for United Public
Employees, Local 1; Krista Whitman, Supervising Deputy County Counsel for the County of
Sacramento.
Before Bernard McMonigle, Chief Administrative Law Judge.
In this case, a public employee union alleges 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 without meeting and conferring in good faith with
the exclusive representative. 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
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED PUBLIC EMPLOYEES, LOCAL 1,
PROPOSED DECISION
Charging Party, 	(June 13, 2008)
V .
UNFAIR PRACTICE
COUNTY OF SACRAMENTO, 	CASE NO. SA-CE-477-M
Respondent.
Appearances: Leonard Carder, LLP, by Margot A. Rosenberg, Attorney for United Public
Employees, Local 1; Krista Whitman, Supervising Deputy County Counsel for the County of
Sacramento.
Before Bernard McMonigle, Chief Administrative Law Judge.
In this case, a public employee union alleges 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 without meeting and conferring in good faith with
the exclusive representative. 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.
On August 30, 2007, the County made a motion to consolidate the cases. Because four
matters would be heard on identical facts, they were consolidated for a formal hearing.
This case required additional testimony and exhibits not common to the others.
Accordingly, it was not consolidated but was heard on January 10, 2008. The briefs were
served February 29, 2008, and the matter submitted.
FACTS
At the hearing, the parties presented a Statement of Undisputed/Stipulated Facts and an
agreed upon set of joint exhibits. The relevant facts are as follows.
The County of Sacramento ("County") is a California county and
a public agency as defined by Government Code section 3 50 I (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.
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.
UPE [is a] part[y] to valid memoranda of understanding with the
County with terms of July 1, 2006 through June 30, 2011
("MOU").
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
Act) when it eliminated a medical and dental insurance subsidy for current employees without
meeting and conferring in good faith with their exclusive representative.
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.
On August 30, 2007, the County made a motion to consolidate the cases. Because four
matters would be heard on identical facts, they were consolidated for a formal hearing.
This case required additional testimony and exhibits not common to the others.
Accordingly, it was not consolidated but was heard on January 10, 2008. The briefs were
served February 29, 2008, and the matter submitted.
FACTS
At the hearing, the parties presented a Statement of Undisputed/Stipulated Facts and an
agreed upon set of joint exhibits. The relevant 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 3501(d).
UPE [is a] partly] to valid memoranda of understanding with the
County with terms of July 1, 2006 through June 30, 2011
("MOU").
MMBA is codified at Government Code section 3500 et seq.
The complaint alleges that through its action, the County violated Government Code
section 3505 and PERB Regulation 32603(c).
2

Since 1980, 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. \X/hile 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.
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	10 years in SCERS-covered employment,
having attained at least 60 years of combined age
and service prior to January 1, 2007, and who
begins receiving SCERS pension payments within
and
3
Since 1980, 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.
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
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.
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 10,
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 ....
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
4
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.
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 10,
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 . . . .
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	Dental Insurance Program for 2008. The policy provides that	Insurance Program for 2008. The policy provides
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.
that
UPE ha[s] 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.
In addition to the Undisputed/Stipulated Facts, the following facts were established in
this matter.
UPE and the County are signatory to two collective bargaining agreements effective
2006 to 2011.3 Section 4.6
of
the Office - Technical agreement states,
The parties acknowledge that, for the life
of
this Agreement, each
voluntarily and unqualifiedly waives the right and each agrees
that the other shall not be obligated to negotiate with respect to
any subject or matter pertaining to or covered by this Agreement,
except as otherwise provided herein.
The current agreement for the Welfare Non-Supervisory Bargaining unit contains a
similar provision.
James Starr is employed by the County and is the Chair
of
the UPE Local 1 Board
of
Directors. He has been a member
of
the negotiating team for the last five collective bargaining
agreements.
U UPE represents an Office and Technical Bargaining Unit and a Welfare Non
Supervisory Bargaining Unit.
5
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
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 ha[s] 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.
In addition to the Undisputed/Stipulated Facts, the following facts were established in
this matter.
UPE and the County are signatory to two collective bargaining agreements effective
2006 to 2011." Section 4.6 of the Office - Technical agreement states,
The parties acknowledge that, for the life of this Agreement, each
voluntarily and unqualifiedly waives the right and each agrees
that the other shall not be obligated to negotiate with respect to
any subject or matter pertaining to or covered by this Agreement,
except as otherwise provided herein.
The current agreement for the Welfare Non-Supervisory Bargaining unit contains a
similar provision.
James Starr is employed by the County and is the Chair of the UPE Local 1 Board of
Directors. He has been a member of the negotiating team for the last five collective bargaining
agreements.
PE represents an Office and Technical Bargaining Unit and a Welfare Non-
Supervisory Bargaining Unit.
5

Starr testified that in 2001, UPE and the County met to discuss health and welfare
benefits. The purpose
of
these meetings was to improve the County's health care package and
to achieve the best benefits for the lowest cost to the County and its employees.
During the meetings, the County proposed a change to the retiree health benefits,
whereby active employees' premium rates would be blended with the premiums paid by
County retirees under age 65. The County argued that
if
the rates for retirees under age 65
were not blended with the rates
of
current employees, they might be priced out
of
the
healthcare market, or the insurance companies might refuse to offer coverage to retirees under
age 65.
According to Starr, the UPE general membership voted on September 11, 2001 to
accept the County's blended rates proposal despite a substantial increase in medical premium
rates charged to active employees.
As a UPE representative, Starr attended four health and welfare meetings with the
County prior to bargaining the 2006-2011 successor agreement. The meetings were held
October 21, November 28, December 2, and December 19, 2005.
During these meetings, County spokesmen proposed the establishment
of
retiree health
savings accounts for current employees. UPE representatives expressed concern regarding the
effect
of
the proposed changes on employees who were near retirement and expressed their
desire to bargain retirement benefits during bargaining for what became the 2007-2011
agreements.
During the negotiations, the County introduced essentially the same retiree health
savings account proposal that was presented at the 2005 health and welfare meetings. County
,,
Labor Relations Director Steve Lakich and Chief Financial/Operations Officer Geoffrey Davey
were present at one meeting and explained that the County was going to begin pre-funding
6
Starr testified that in 2001, UPE and the County met to discuss health and welfare
benefits. The purpose of these meetings was to improve the County's health care package and
to achieve the best benefits for the lowest cost to the County and its employees.
During the meetings, the County proposed a change to the retiree health benefits,
whereby active employees' premium rates would be blended with the premiums paid by
County retirees under age 65. The County argued that if the rates for retirees under age 65
were not blended with the rates of current employees, they might be priced out of the
healthcare market, or the insurance companies might refuse to offer coverage to retirees under
age 65.
According to Starr, the UPE general membership voted on September 11, 2001 to
accept the County's blended rates proposal despite a substantial increase in medical premium
rates charged to active employees.
As a UPE representative, Starr attended four health and welfare meetings with the
County prior to bargaining the 2006-2011 successor agreement. The meetings were held
October 21, November 28, December 2, and December 19, 2005.
During these meetings, County spokesmen proposed the establishment of retiree health
savings accounts for current employees. UPE representatives expressed concern regarding the
effect of the proposed changes on employees who were near retirement and expressed their
desire to bargain retirement benefits during bargaining for what became the 2007-2011
agreements.
During the negotiations, the County introduced essentially the same retiree health
savings account proposal that was presented at the 2005 health and welfare meetings. County
Labor Relations Director Steve Lakich and Chief Financial/Operations Officer Geoffrey Davey
were present at one meeting and explained that the County was going to begin pre-funding

post-retirement medical costs. UPE expressed concern that the retiree health safety accounts
could be used by the County to reduce or terminate the retiree health subsidy. According to
Starr, the County responded that termination of the retiree health subsidy was its long-term
goal.
According to Starr, the UPE agreed to add the retiree health savings accounts to the
2006 agreements because the County indicated there would be no contract without it. The
contracts were signed by the parties in September 2006.
Starr participated in an April 10, 2007 meeting with the County to discuss retiree health
benefits at issue here. The UPE position was that, because of the contracts between the parties,
it was not obligated to negotiate the County's planned changes.
Dennis Batchelder, a labor consultant, was the County's chief negotiator for the 2006
contract negotiations with UPE. Batchelder testified that the parties negotiated a retiree health
savings plan in which the County would contribute 25 dollars per pay period that employees
could use upon retirement for any health related activity or need. They did not negotiate the
retirement program at issue here and he made no representations regarding it. He recalled that,
early in negotiations, the UPE proposed the County pay for health benefits for retirees but that
proposal was dropped.
Linda Eto is a labor relations supervisor for the County. Eto recalled the discussions in
2001 with the unions regarding retirement health benefits. She characterized the meetings as
informal bargaining sessions. According to Eto, health insurance rates for employees and
retirees have always been "blended" and that did not change as a result of the discussions.
Eto also testified that the County has never negotiated the retiree health insurance
program because it only affects retirees and was not considered a mandatory subject of
bargaining.
7
post-retirement medical costs. UPE expressed concern that the retiree health safety accounts
could be used by the County to reduce or terminate the retiree health subsidy. According to
Starr, the County responded that termination of the retiree health subsidy was its long-term
goal.
According to Starr, the UPE agreed to add the retiree health savings accounts to the
2006 agreements because the County indicated there would be no contract without it. The
contracts were signed by the parties in September 2006.
Starr participated in an April 10, 2007 meeting with the County to discuss retiree health
benefits at issue here. The UPE position was that, because of the contracts between the parties,
it was not obligated to negotiate the County's planned changes.
Dennis Batchelder, a labor consultant, was the County's chief negotiator for the 2006
contract negotiations with UPE. Batchelder testified that the parties negotiated a retiree health
savings plan in which the County would contribute 25 dollars per pay period that employees
could use upon retirement for any health related activity or need. They did not negotiate the
retirement program at issue here and he made no representations regarding it. He recalled that,
early in negotiations, the UPE proposed the County pay for health benefits for retirees but that
proposal was dropped.
Linda Eto is a labor relations supervisor for the County. Eto recalled the discussions in
2001 with the unions regarding retirement health benefits. She characterized the meetings as
informal bargaining sessions. According to Eto, health insurance rates for employees and
retirees have always been "blended" and that did not change as a result of the discussions.
Eto also testified that the County has never negotiated the retiree health insurance
program because it only affects retirees and was not considered a mandatory subject of
bargaining.
7

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
of
representation, and (2) the change was implemented before the employer fulfilled its
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. (San Joaquin
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:
8
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 of representation, and (2) the change was implemented before the employer fulfilled its
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. (San Joaquin
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.
(NLRB v. Truitt Mig. 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,
2007.4 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 important to clarify the issue before PERB. This case is not about retiree
bargaining rights.5 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
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."
*I
5 Nor does this case address the vesting rights of retirees.
9
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." 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 important to clarify the issue before PERB. This case is not about retiree
bargaining rights.' 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
t 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."
Nor does this case address the vesting rights of retirees.

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.
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
vvas
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
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.
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
10

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
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 ap 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
11
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 "[the policy at issue . . . was adopted on June 5, 2007, and only applies to those who
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
11

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 1980.7
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. 8
However, the County has not demonstrated that UPE waived its 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
(1986) PERB Decision No. 595.) 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. The County has not established
that the UPE waived its right to bargain over changes in future retirement health benefits for
current employees.
In addition, the contracts between the parties contain an agreement that neither side
may require the other to bargain certain matters during their term. Commonly referred to as a
7 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.
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.
8 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." 
12
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."
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."
However, the County has not demonstrated that UPE waived its 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
(1986) PERB Decision No. 595.) 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. The County has not established
that the UPE waived its right to bargain over changes in future retirement health benefits for
current employees.
In addition, the contracts between the parties contain an agreement that neither side
may require the other to bargain certain matters during their term. Commonly referred to as a
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."
12

"zipper clause," a union may rely on it to refuse to negotiate a mid-contract change in a subject
within the scope
of
bargaining, and prohibit an employer from implementing one. (Cupertino
Union School District (1993) PERB Decision No. 987.)
The County maintains that the zipper clause has no application here because the
retirement health plan at issue is not covered by the collective bargaining agreement.
However, as stated in the contract, the UPE may assert the zipper clause with regard to
"any
subject or matter pertaining to or covered by this Agreement." (Emphasis added.) The Board
directs that we "look to the plain language
of
the zipper clause." (Los Rios Community
College District (1988) PERB Decision No. 684.) The plain meaning
of
"pertaining to" is that
one matter references or relates to another. Here, both plans address payment for retiree health
needs. 	Significantly, County representatives Lakich and Davey made clear to UPE negotiators
that there is a close relationship between the two plans; one is intended to displace the other.
Thus, the new retirement health savings plan "pertains to" the existing retiree medical program
and the "zipper" clause may be relied on by the UPE.
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.9 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
9 The UPE argues that another reason to find this matter within the scope of bargaining
is the fact that retiree health subsidy was "a subject of bargaining." However, as the Board has
made clear, "a permissive subject is not transformed into a mandatory subject solely on the
basis" of past bargaining or even agreement. (El Centro Elementary School District (2006)
PERB Decision No. 1863.) 
13
"zipper clause," a union may rely on it to refuse to negotiate a mid-contract change in a subject
within the scope of bargaining, and prohibit an employer from implementing one. (Cupertino
Union School District (1993) PERB Decision No. 987.)
The County maintains that the zipper clause has no application here because the
retirement health plan at issue is not covered by the collective bargaining agreement.
However, as stated in the contract, the UPE may assert the zipper clause with regard to "any
subject or matter pertaining to or covered by this Agreement." (Emphasis added.) The Board
directs that we "look to the plain language of the zipper clause." (Los Rios Community
College District (1988) PERB Decision No. 684.) The plain meaning of "pertaining to" is that
one matter references or relates to another. Here, both plans address payment for retiree health
needs. Significantly, County representatives Lakich and Davey made clear to UPE negotiators
that there is a close relationship between the two plans; one is intended to displace the other.
Thus, the new retirement health savings plan "pertains to" the existing retiree medical program
and the "zipper" clause may be relied on by the UPE.
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
" The UPE argues that another reason to find this matter within the scope of bargaining
is the fact that retiree health subsidy was "a subject of bargaining." However, as the Board has
made clear, "a permissive subject is not transformed into a mandatory subject solely on the
basis" of past bargaining or even agreement. (El Centro Elementary School District (2006)
PERB Decision No. 1863.)
13

represent their members and violated section 3506 by interfering with the rights of employees
to be represented by their employee 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 United
Public Employees Local 1(UPE) in violation of Government Code section 3505 and PERB
Regulation 32603(c) when it unilaterally implemented changes in the Retiree 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 UPE its right to represent employees in their employment relations with a public
agency, in violation of Government Code section 3503 and PERB Regulation 32603(6).
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:	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 UPE 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.
Interfering with bargaining unit members' right to participate in the
activities of an employee organization of their own choosing.
3. 	Denying UPE its right to represent employees in their employmen
relations with the County.
14
represent their members and violated section 3506 by interfering with the rights of employees
to be represented by their employee 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 United
Public Employees Local 1(UPE) in violation of Government Code section 3505 and PERB
Regulation 32603(c) when it unilaterally implemented changes in the Retiree 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 UPE its 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.
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 UPE prior notice and opportunity to bargain.
2.
3. 	Denying UPE its right to represent employees in their employment t
relations with the County.
14

B. 	TAKING THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO	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.
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. 
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,
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 United Public Employees Local
1.
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
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:
15
B.
EFFECTUATE THE POLICIES OF THE ACT.
1.
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.
3.
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),
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on United Public Employees Local 1.
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:
15

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.)
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).)
16
Bernard McMonigle	Bernard McMonigle
Administrative Law Judge
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.)
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).)
Administrative Law Judge
16