County of Sacramento (PERB 1943M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO COUNTY ATTORNEYS
ASSOCIATION,
Charging Party,
V.
COUNTY OF SACRAMENTO,
Res ondent.
SACRAMENTO COUNTY PROFESSIONAL
ACCOUNTANTS ASSOCIATION,
Charging Party,
V.
COUNTY OF SACRAMENTO,
Respondent.
Case No. SA-CE-387-M
PERB Decision No. 1943-M
February 14, 2008
Case No. SA-CE-388-M
Appearances: 	Carroll, Burdick & McDonough by Gary M. Messing and Jason H. Jasmine,
Attorneys, for Sacramento County Attorneys Association and Sacramento County Professional
Accountants Association; Krista C. Whitman, Attorney, for County of Sacramento.
Before Neuwald, Chair; McKeag and Wesley, Members.
DECISION
NEUW ALD, Chair: 	These cases are before the Public Employment Relations Board
(PERB or Board) on appeal by the Sacramento County Attorneys Association (SCAA) and the
Sacramento County Professional Accountants Association (SCP AA)1 of a proposed decision
by an administrative law judge (ALJ). 	These consolidated cases alleged that the County of
1Collectively the SCAA and SCPAA shall be referred to as the Associations.

Sacramento (County) unilaterally changed the eligibility criteria for future retirees'
participation in the Retiree Health Insurance Program in violation
of
the Meyers-Milias-Brown
Act (MMBA).2 The ALJ dismissed the complaint and underlying unfair practice charge
finding the issue moot because the County rescinded the change in policy.
The Board reviewed the entire record in this matter, including the unfair practice
charge, complaint, stipulated record, the Associations' statement
of
exceptions, the County's
response thereto, and supplemental briefing requested by the Board. 3 Based upon this review,
the Board hereby reverses the ALJ' s proposed decision and finds a violation in accordance
with the discussion below.
PROCEDURAL HISTORY
On April 17, 2006, the Associations filed unfair practice charges against the County.
On July
8,
2006, the PERB General Counsel's Office issued a complaint alleging that the
County breached its duty to meet and confer in good faith when it unilaterally changed future
retirees eligibility to receive medical offset payments effective January
1,
2007, interfered with
the Associations' right to represent bargaining unit employees, and interfered with the rights
of
2The MMBA is codified at Government Code section 3500, et seq. Unless otherwise
specified, all statutory references are to the Government Code.
3On appeal, the Associations present new charge allegations and new supporting
evidence not previously presented to the ALJ. PERB Regulation 32635(b) precludes a
charging party from raising new allegations or new supporting evidence on appeal without
good cause. The Associations fail to demonstrate good cause. The new evidence submitted by
the Associations goes to the new allegation. As such, the Board does not address the new
evidence presented. (PERB regs. are codified at Cal. Code of Regs., tit. 8, sec. 31001, et seq.)
2

unit employees to be represented, in violation of MMBA sections 3503, 3505 and 3506,4 and
PERB Regulation 32603(a), (b), and (c). 5
4MMBA section 3503 provides in relevant part:
Recognized employee organizations shall have the right to
represent their members in their employment relations with
public agencies.
Section 3505 states:
The governing body of a public agency, or such boards,
commissions, administrative officers or other representatives as
may be properly designated by law or by such governing body,
shall meet and confer in good faith regarding wages, hours, and
other terms and conditions of employment with representatives of
such recognized employee organizations, as defined in
subdivision (b) of Section 3501, and shall consider fully such
presentations as are made by the employee organization on behalf
of its members prior to arriving at a determination of policy or
course of action.
'Meet and confer in good faith' means that a public agency, or
such representatives as it may designate, and representatives of
recognized employee organizations, shall have the mutual
obligation personally to meet and confer promptly upon request
by either party and continue for a reasonable period of time in
order to exchange freely information, opinions, and proposals,
and to endeavor to reach agreement on matters within the scope
of representation prior to the adoption by the public agency of its
final budget for the ensuing year. The process should include
adequate time for the resolution of impasses where specific
procedures for such resolution are contained in local rule,
regulation, or ordinance, or when such procedures are utilized by
mutual consent.
Section 3506 states:
Public agencies and employee organizations shall not interfere
with, intimidate, restrain, coerce or discriminate against public
employees because of their exercise of their rights under Section
3502.
5Regulation 32603 provides, in relevant part, that it is an unfair practice for a public
agency to do any of the following:
3

On June 28, 2006, the County answered the complaint, admitting certain charges,
denying all substantive allegations, and asserting the affirmative defense that it was not
obligated to bargain the proposed change in the Retiree Health Insurance Program (RHIP).
Two informal settlement conferences were conducted on July 10 and August 11, 2006, but the
dispute was not resolved.
On September 25, 2006, a formal hearing was scheduled in Sacramento. Testimony
was not taken due to the parties' stipulation to submit a statement of undisputed/stipulated
facts (Statement). The parties presented 12 joint exhibits. The Statement was received as joint
exhibit 13. On December 1, 2006, the cases were submitted for decision following receipt of
post-hearing briefs. The ALJ's proposed decision was issued on January 22, 2007.
(a) Interfere with, intimidate, restrain, coerce or discriminate
against public employees because of their exercise of rights
guaranteed by Government Code section 3502 or by any local
rule adopted pursuant to Government Code section 3507.
(b) Deny to employee organizations rights guaranteed to them by
Government Code section 3503, 3504.5, 3505.1, 3505.3, 3507.1,
3508( d) or 3508.5 or by any local rule adopted pursuant to
Government Code section 3507.
(c) Refuse or fail to meet and confer in good faith with an
exclusive representative as required by Government Code section
3505 or any local rule adopted pursuant to Government Code
section 3507.
4

FINDINGS OF FACT
Jurisdiction
SCAA and SCP AA are recognized exclusive representatives within the meaning of
PERB Regulation 32016(b ). The County is a public agency under PERB Regulation
32016(a),6 and Section 3501(c).7
6In pertinent part, PERB Regulation 32016 provides:
(a) Public agency. 	'Public agency' means every governmental
subdivision, every district, every public and quasi-public corporation,
every public agency and public service corporation, every town, city,
county, city and county and municipal corporation, whether incorporated
and whether chartered or not. For purposes of these regulations, the term
'public agency' shall exclude the City of Los Angeles, County of Los
Angeles, and superior and municipal courts, and does not mean a school
district or a county board of education or a county superintendent of
schools or a personnel commission in a school district having a merit
system as provided in Chapter 5 (commencing with Section 45100) of
Part 25 and Chapter 4 (commencing with Section 88000) of Part 51 of the
Education Code or the State of California. The term 'public agency,' as
used herein, also excludes any transit agency not subject to the MMBA.
(b) Exclusive representative. References in these regulations to an
'exclusive representative' means an employee organization that has been
recognized or certified as an exclusive or majority bargaining agent
pursuant to MMBA.
7Section 3501(c) states:
(c) Except as otherwise provided in this subdivision, 'public agency'
means every governmental subdivision, every district, every public and
quasi-public corporation, every public agency and public service
corporation and every town, city, county, city and county and municipal
corporation, whether incorporated or not and whether chartered or not.
As used in this chapter, 'public agency' does not mean a school district or
a county board of education or a county superintendent of schools or a
personnel commission in a school district having a merit system as
provided in Chapter 5 (commencing with Section 45100) of Part 25 and
Chapter 4 ( commencing with Section 88000) of Part 51 of the Education
Code or the State of California.
5

Stipulated Facts
SCAA is the recognized exclusive representative for non-supervisory and supervisory
attorneys employed by the County working in the offices of the District Attorney, the Public
Defender and the Department of Child Support Services. 	SCAA and the County are parties to
a valid memorandum of understanding with a term of December 30, 2001 through June 30,
2006 (SCAA MOU).
SCP AA is the recognized exclusive representative for non-supervisory accountants and
auditors employed by the County. SCP AA and the County are parties to a valid memorandum
of understanding with a term of February 23, 2003 through June 30, 2006 (SCPAA MOU).
On or about December 28, 2005, SCAA notified the County of its intent to terminate
the SCAA MOU effective June 30, 2006, and commence negotiations for a successor
agreement as soon as possible. 	SCAA advised the County that Gary Messing (Messing) would
serve as SCAA's chief negotiator.
On or about January 30, 2006, SCP AA notified the County of its intent to terminate the
SCP AA MOU and commence negotiations for a successor agreement. SCP AA identified
Messing as its chief negotiator for contract negotiations with the County.
The County has maintained the RHIP since 1980. Based on annual determinations of
the County Board of Supervisors, eligible County retirees have been provided a health
insurance offset payment to assist them with the purchase of health insurance. Offset
payments to retirees are calculated based on the retiree's service credit. Retirees who
participate in the RHIP are not vested in the offset payments.
County employees were eligible to participate in the RHIP in effect for the year 2006 as
follows:
6

Individuals who leave active employment with at least 10 years
of service in [Sacramento County Employees' Retirement
Service] SCERS, or due to industrial or non-industrial disability
regardless of years of service, are eligible to participate in the
[RHIP]. [Jt. Exhibit 4.]
On or about January 26, 2006, the County forwarded a written proposal to SCAA and
SCP AA advising that the Board of Supervisors would be holding a public hearing on
January 31, 2006, to consider changes to the RHIP for calendar year 2007. 	While the County
proposed to maintain the existing level of medical offset payments to exiting retirees for
calendar year 2007, the County proposed to limit the number of current employees who could
participate in the RHIP after January 1, 2007. The County stated that the proposed "policy
change will eliminate the eligibility for offset payments for many future retirees."
Upon receiving the County's proposal, SCAA and SCP AA directed letters to the
County advising that such changes to the RHIP are within the scope of representation and may
not be implemented unilaterally. 	SCAA and SCP AA asked the County not to implement the
changes for current employees who may retire in the future.
The County conceptually approved the proposed changes to the RHIP on February 7,
2006.
On or about March 17, 2006, the County notified SCAA and SCPAA that the Board of
Supervisors would be considering the proposed changes to the RHIP at its March 28, 2006,
hearing. 	Specifically, the County proposed to limit eligibility for current County employees to
participate in the RHIP as follows:
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
7

Any Annuitant retiring on or after January 1, 2007 who is granted
a service-connected disability retirement from SCERS, regardless
of years of service. 	[Emphasis in original.]
The County's Director of Labor Relations stated that if any employee organization desired to
meet on the matter, they should notify his office no later than March 24, 2006.
SCAA and SCP AA sent letters to the County's Director of Labor Relations on
March 22, 2006, contending that the proposed changes in the RHIP for current SCAA and
SCP AA represented employees who retire after January 2007 are within the scope of
representation, and requested to meet and confer over the matter. 	SCAA and SCP AA also
reminded the County of their requests to bargain for new contracts, and that proposals
pertaining to a RHIP should be presented in the context of those negotiations.
The County approved and implemented the proposed eligibility changes to the RHIP on
March 28, 2006.
On April 19, 2006, the County responded to SCAA's and SCPAA's earlier
correspondence. The County asserted its view that the RHIP relates to benefits which are
peculiar to retirees, and thus is not subject to mandatory bargaining and has never been made
the subject of permissive bargaining. The County further stated that the "County is not willing
to bargain the subject matter."
SCAA and the County held their first bargaining session for a new MOU on June 2,
2006. 	During the second bargaining session on June 27, 2006, SCAA opened the issue of
retiree health benefits and made a proposal for retiree health benefits. The County rejected
SCAA's proposal.
On May 31, 2006, SCP AA and the County commenced bargaining for a successor
MOU. 	SCP AA opened the issue of retiree health benefits during the second bargaining
8

session, on June 27, 2006, and subsequently made a specific proposal on the matter. 	The
County rejected SCP AA's proposal for retiree health benefits.
On September 12, 2006, prior to the effective date of the eligibility changes to the
RHIP for 2007, the Board of Supervisors approved a revised RHIP, which returned to the 2006
eligibility requirements and deleted the provisions that affected current employees who would
retire on or after January 1, 2007. The County's recommendation to the Board of Supervisors
stated that "based on subsequent discussions with County Counsel and Labor Relations, we
have determined that it would be a prudent business practice to continue discussions with labor
organizations regarding implementation of a retiree health savings plan" and "we recommend a
return to the 2006 eligibility requirements while staff continues discussion with labor
organizations to develop a retiree health savings plan."
ASSOCIATIONS' EXCEPTIONS
The Associations except to the ALJ's conclusion that the issue was moot due to the
County's rescission of its unilateral implementation. 	Specifically, the Associations argue:
[A] 11 of the evidence in the record shows that although the
County did rescind its unilateral implementation, it never
changed its position that it was not obligated to bargain. Further,
there was certainly nothing in the record to suggest that the
County has somehow lost its power to renew the conduct. To the
contrary, the County's September 2006 rescission said that the
County would only discuss 'implementation' of its changes.
The record clearly reflects that the Associations had made their
own proposals with regard to future medical benefits for current
employees. 	[Citation.] 	Yet the County continues to refuse to
bargain in good faith, and that portion of the Associations' claims
(the County's refusal to bargain in good faith) have never been
addressed. 	[Citation.]
(Emphasis in original; fn. omitted.)
9

In response to the Board's request for supplemental briefing, the Associations argue
that "the County [had] a mandatory obligation to bargain any proposed changes to retirement
health benefits for current employees" because the County made changes to the eligibility
criteria for current County employees.
COUNTY'S RESPONSE
The County argues that:
1. 	"Although the stipulated facts support Charging Parties' assertion that the
County was unwilling to bargain the subject matter, none of the stipulated facts or exhibits
support the contention that the refusal to bargain had a detrimental and adverse impact on
negotiations"; and
2. 	The remedy sought by the Associations "was an order that the County 'cease
and desist from failing and/or refusing to comply with the meet and confer requirements of the
MMBA."' The County states that"[ o ]nee the policy was revised to delete the new eligibility
rules, there was no longer any policy change even arguably subject to meet and confer
requirements."
In their supplemental briefing, the County argues that the case was moot and, if not, the
"proposed decision should still be upheld as the proposed changes [were] not a mandatory
subject of bargaining."
DISCUSSION
In determining whether a party has violated MMBA section 3505 and PERB
Regulation 32603(c), 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.)8 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 notified the exclusive
representative and gave it an opportunity to request negotiations. 	(Vernon Fire Fighters v. City
of Vernon (1980) 107 Cal.App.3d 802 [165 Cal.Rptr. 908]; 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 [207 Cal.Rptr. 876]; Grant Joint Union High School
District (1982) PERB Decision No. 196.)
The Board addressed the issue of future retirement benefits for current employees in
Madera Unified School District (2007) PERB Decision No. 1907 (Madera). In Madera, the
Board held that "the future retirement benefits of active workers are part and parcel of their
overall compensation and hence a well-established statutory subject of bargaining."
Here, the criteria to determine whether a current employee is eligible for retirement
benefits is at issue. Just as the Board found in Madera, "future retirement benefits for
employees are within scope of bargaining because they are part of an employee's
compensation package and therefore related to 'wages'." Modification of the eligibility
criteria directly impacts whether a current employee will receive the future retirement benefit.
Thus, this subject falls within the scope of representation.
The parties are in agreement that the County adopted an ordinance modifying the
eligibility criteria to limit the number of current employees who could participate in the RHIP
8When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608 [116 Cal.Rptr.
507].)
11

effective January 1, 2007. The County implemented this change without giving the
Associations an opportunity to bargain. Therefore, the County unilaterally changed a policy
within the scope of bargaining without meeting its obligation to bargain.
The County argues that by rescinding the ordinance, there is no longer any policy
change even arguably subject to meet and confer requirements, and the issue is now moot. In
Amador Valley Joint Union High School District (1978) PERB Decision No. 74, however, the
Board held that the later reversal or recission of a unilateral action or subsequent negotiation
on the subject of a unilateral action does not excuse a violation. (See Marin Community
College District (1980) PERB Decision No. 145.) As stated in San Mateo Community College
District (1979) PERB Decision No. 94, unilateral actions are disfavored: (a) because of their
destabilizing and disorienting impact on employer-employee affairs; (b) such action derogates
the representatives negotiating power and ability to perform as an effective representative in
the eyes of the employees and undermine exclusivity; (c) such action denigrates negotiations
consistent with statutory design under the Educational Employment Relations Act (EERA);9
and finally (d) such action unfairly shifts community and political pressure to employees and
their organizations, and at the same time reduces the employer's accountability to the public.
The fact that the County reversed its position and restored the status quo before the new policy
went into effect, does not cure the unlawful unilateral change.
REMEDY
The usual remedy for an unlawful unilateral change in policy is to order a restoration of
the status quo. In this case, the parties stipulated that the County already rescinded the policy
change. 	It is therefore unnecessary to order a restoration of the status quo.
9EERA is codified at Government Code section 3540, et seq.
12

ORDER
Upon the foregoing finding 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 PERB Regulation
section 32603(a), (b) and (c).
Pursuant to Government Code sections 3509(a) and 3541.S(c), it is hereby ORDERED
that the County and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to meet and negotiate in good faith with the
exclusive representatives on matters within the scope of representation, as defined by MMBA
section 3504, with particular reference to the modification of future retiree health benefits.
2. 	Denying the Sacramento County Attorneys Association (SCAA) and the
Sacramento County Professional Accountants Association (SCP AA) their right to represent
unit members by failing and refusing to meet and negotiate about matters within the scope of
representation.
3. 	Interfering with employees because of their exercise of their right to
select an exclusive representative to meet and negotiate with the employer on their behalf by
refusing to bargain matters within the scope of representation with the exclusive representative.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	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
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
13

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.
2. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel's designee. The County shall provide reports, in writing, as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on SCAA and SCP AA.
Members McKeag and Wesley joined in this Decision.
14

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 Nos. SA-CE-387-M, Sacramento County
Attorneys Association v. County of Sacramento, and SA-CE-388-M, Sacramento County
Professional Accountants Association v. County of Sacramento, in which all parties had the
right to participate, it has been found that the County of Sacramento violated the Meyers-
Milias-Brown Act (MMBA), Government Code sections 3503, 3505 and 3506, and PERB
Regulation section 32603(a), (b) and (c).
As a result of this conduct, we have been ordered to post this Notice and we will:
CEASE AND DESIST FROM:
1. 	Failing and refusing to meet and negotiate in good faith with the exclusive
representatives on matters within the scope of representation, as defined by MMBA
section 3504, with particular reference to the modification of future retiree health benefits.
2. 	Denying the Sacramento County Attorneys Association and the Sacramento
County Professional Accountants Association their right to represent unit members by failing
and refusing to meet and negotiate about matters within the scope of representation.
3. 	Interfering with employees because of their exercise of their right to select an
exclusive representative to meet and negotiate with the employer on their behalf by refusing to
bargain matters within the scope of representation with the exclusive representative.
Dated: --------- COUNTY OF SACRAMENTO
By: ---------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.