County of Sacramento (PERB 2045M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1021,
Charging Party, Case No. SA-CE-505-M
v. PERB Decision No. 2045-M
COUNTY OF SACRAMENTO, June 30, 2009
Respondent.

Appearances: Weinberg, Roger & Rosenfeld, by Matthew J. Gauger, Attorney, for Service
Employees International Union, Local 1021; Krista C. Whitman, Supervising Deputy County
Counsel, for County of 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). The charge 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 Service Employees
International Union, Local 1021 (SEIU Local 1021).
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, four charging party exhibits, the ALJ' s proposed decision, the County's statement
of
exceptions, SEIU Local 1021
's
response thereto, and the parties' briefs. Based upon this
review, the Board adopts the ALJ's proposed decision as the decision
of
the Board itself
subject to the following discussion.
FACTS
While the ALJ correctly summarized the facts, we found a stipulated fact omitted and
supplement the ALJ's findings: 	SEIU Local 1021 and the County began bargaining in
Spring 2006. The County presented a Retiree Health Savings Plan (RHSP) as a portable plan
for active employees, and did not say that its proposal would replace the then current benefit.
The County later explained that employees retiring after January
1,
2007 would only receive a
health insurance offset
if
they had a combined age and years
of
service
of
at least 60. 	The
union was not interested in having its members pay into the plan. The County proposed that it
would pay $25.00 into each employee's RHIP each pay period. SEIU Local 1021 had no
objection so long as this sum was not included as part
of
the cost
of
the union's proposals. The
parties agreed to this arrangement as part
of
a total contract language.
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
2

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
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,
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

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.).
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:
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, Service Employees
International Union, Local 1021 (SEIU Local 1021).
2. 	Denying SEIU Local 1021 it's 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.
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.
4

B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION 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.
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
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 SEID
Local 1021.
Members McKeag and Wesley joined in this Decision.
5

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-505-M, Service Employees
International Union, Local 1021
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 exclusive representative, Service Employees
International Union, Local 1021 (SEIU Local 1021).
2.	
Denying SEIU Local I 021
it's 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 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 participatejn 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.
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, DEFACED, ALTERED OR COVERED WITH ANY OTHER MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SEIU LOCAL 1021,
Charging Party,
V.
COUNTY OF SACRAMENTO,
Respondent.
UNFAIR PRACTICE
CASE NO. SA-CE-505-M
PROPOSED DECISION
(June 16, 2008)
Appearances: 	Weinberg, Roger & Rosenberg, by Matthew J. Gauger and Gary P. Provencher,
Attorneys for Service Employees International Union Local 1021; 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 unilateraily discontinued a retirement medical benefit for
employees who retired after June
1,
2007. The employer denies committing an unfair practice.
PROCEDURAL HISTORY
On September 27, 2007, Service Employees International Union Local 1021 (SEIU)
filed an unfair practice charge against the County
of
Sacramento (County). On October 9,
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
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).

Similar unfair practice charges were filed by five other employee organizations that
exclusively represent bargaining units with the County.
	In
each case the PERB Office
of
the
General Counsel issued complaints similar to that in the SEIU matter.
On July 3, 2007, an unsuccessful informal settlement conference was conducted
between the County and SEIU. 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 on
January 10, 2008.
Two cases (including the SEIU 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 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).
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.).
SEIU [is
a]
part[y] to a valid memorandum
of
understanding with
the County with terms
of
July 1, 2006 through June 30, 2011
("MOU").
Since 1980, based on annual determinations of the Board of
Supervisors, eligible County retirees have been provided with
2

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
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
3

retirement from SCERS, regardless of years of
service.
During the spring and summer of 2006, the County engaged in
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 .... SEIU
requested to meet and the County and SEIU met on January 25,
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 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.
SEIU 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.
4

In addition to the Undisputed/Stipulated Facts, the following facts were established in
this matter.
Kathy O'Neil is a human services supervisor who works for the County. 	She is a
member
of
SEIU and Chapter President for the County bargaining unit. From April to October
2006, she was a union negotiator for a successor collective bargaining agreement. The
County's proposed retiree health savings plan was among the topics discussed. Management
negotiators explained how the savings plan would benefit current employees in retirement.
O'Neil testified that SEIU negotiators asked County representatives at least three times
whether County's proposal would lead to elimination
of
the retiree health subsidy. According
to O'Neil, County Chief Negotiator for the SEIU contract, Susan Murray (Murray), stated that
the two programs were not connected.
Ian Arnold
is
a labor relations representative for SEIU and was the chief union
negotiator for the new agreement. Arnold testified that, in response to a question from
O'Neil
in June 2006, Murray stated that the retiree health subsidy would remain, but on a sliding
scale.
Murray proposed a new retiree health savings plan, whereby the County would add $25
a pay period to an employee retiree health savings account. She explained to union negotiators
that the County intended to discontinue the existing retiree subsidy program for employees
hired after January 2007.
Murray did not recall SEIU negotiators asking whether the retiree saving plan would
replace the retiree health subsidy plan and denied making any representations on that issue.
She aiso testified that the retiree subsidy program was not a subject of negotiations.
After a strike, the parties reached an agreement that includes that retirement health
savings plan.
5

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.
illLRB 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:
6

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 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
barg~ining. 	(Madera Unified School District, supra, PERB Decision No. 1907.) In making
this determination, the Board followed long established principles originally developed
under
3 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 andconfer. 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."
4 Nor does this case address the vesting rights of retirees.
7

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
8

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 [the
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 [the 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 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
9

decision is the established principle that a binding policy may be established through a
consistent course
of
conduct that is "historic and accepted practice." (Paiaro 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
(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.
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 in the
County's argument was the consistency and regularity of practice of over 20 years found here.
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."

SEIU argues that another reason to find the program within the scope
of
bargaining is
that the existing retiree health subsidy was a subject discussed during negotiations. Whether
the subject was negotiated is a matter in dispute that needs no resolution. 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.)
As stated, the Retiree Medical and Dental Insurance Program 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 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 the
SEIU 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 SEIU its right to represent
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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 SEID.
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.
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
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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 SEIU.
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.)
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. l 1020(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
13

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).)
Bernard McMonigle 	/
Administrative Law Judge
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