County of Sonoma (PERB 2173M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SONOMA COUNTY LAW ENFORCEMENT
ASSOCIATION,
Charging Party,
V.
COUNTY OF SONOMA,
Respondent.
Case No. SF-CE-456-M
PERB Decision No. 	2173-M
March
1,
2011
Appearances: Mastagni, Holstedt, Amick, Miller & Johnsen by Kathleen
M.
Mastagni,
Attorney, for Sonoma County Law Enforcement Association; Renne, Sloan, Holtzman & Sakai
by Timothy
G.
Yeung, Attorney, for County
of
Sonoma.
Before McKeag, Wesley and Miner, Members.
DECISION
MINER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the County
of
Sonoma (County) to the proposed decision
of
an administrative law judge (ALJ). The original complaint alleged that the County violated the
Meyers-Milias-Brown Act (MMBA) 1 by unilaterally changing its policy concerning retirement
benefits without giving the Son01~a County Law Enforcement Association (SCLEA)
notice
and an opportunity to meet and confer over the decision to implement the change in policy
and/or the effects of the change in policy. 	Specifically, the complaint alleged that, on
or
about
April I 0, 2007, the County unilaterally changed the contribution amount from 85 percent to
84
percent of the premium costs of coverage for eligible retirees and dependents. 	On
July
18,
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

2008, the ALJ granted SCLEA's motion to amend the complaint to clarify the allegations as
follows:
'Before April 10, 2007, Respondent's policy concerning health
insurance contributions for current and future SCLEA retirees
was directly tied to the contributions made for active SCLEA
bargaining unit members. On or about April 10, 2007,
Respondent unilaterally changed this policy by adopting
Resolution No. 07-0267, which alters Respondent's health
insurance contribution amount for current and future SCLEA
retirees by tying them to the contributions made to active
unrepresented management members.'
Thus, the essence
of
the complaint alleges that the County unilaterally changed the manner in
which retiree health insurance contributions are calculated from a policy
of
tying such
contributions to the contributions made on behalf
of
current bargaining unit employees to a
policy
of
tying retiree contributions to the contributions made on behalf
of
unrepresented
management employees.
The ALJ determined that the County violated MMBA section 3505 and PERB
Regulation 32603(c)2 by unilaterally implementing a policy linking health insurance premium
contributions
of
future retirees to those
of
unrepresented administrative management
employees. The ALJ also found that this conduct interfered with the right
of
County
employees to participate in the activities
of
an employee organization
of
their own choosing, in
violation
of
MMBA section 3506 and PERB Regulation 32603(a), and denied SCLEA its right
to represent employees in their employment relations, in violation
of
MMBA section 3 503 and
PERB Regulation 32603(b ).
The Board has reviewed the proposed decision and the record in light of the County's
exceptions and SCLEA's response thereto, and the relevant law. Based on this review, the
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

Board reverses the proposed decision and dismisses the complaint and charge for the reasons
discussed below.
BACKGROUND
The County is a public agency within the meaning
of
MMBA section 3501(c). SCLEA
is an employee organization within the meaning
of
Section 3501(a).
Prior to 2000, the County's four law enforcement bargaining units were exclusively
represented by the Sonoma County Sheriff's Office Employees Association (SCSOEA).
	In
2000, the deputy sheriffs were severed from two
of
the bargaining units and obtained
representation by the Sonoma County Deputy Sheriffs' Association. The employee
organization representing the remaining employees changed its name to SCLEA and continues
3
to represent four bargaining units under two memoranda
of
understanding (MOUs).
The County has provided retiree health insurance benefits since 1964. The
Sonoma
County Employees' Retirement Association (SCERA) administers retiree benefits by
collecting funds from retirees for their premium share, adding them to the County's
contribution, and paying the insurance carriers. SCERA operates under the authority
of
the
County Employees Retirement Law
of
1937, Government Code section 31450 et seq. 	(County
Retirement Law). The County Retirement Law authorizes counties to provide retiree
pension
and health insurance benefits and also authorizes the establishment
of
a recognized association
to represent the interests ofretirees. (County Retirement Law, § 31693.) The Sonoma County
Association
of
Retired Employees (SCARE) is the recognized organization for this
purpose
under the County Retirement Law. SCARE does not have any collective bargaining authority,
3 The four bargaining units are: Law Enforcement Non-Supervisory, Law Enforcement
Supervisory, Corrections and Probation Non-Supervisory, and Corrections and Probation
Supervisory.
3

but provides information to retirees about retirement benefits. Under Section 31693
of
the
County Retirement Law, SCARE is entitled to receive reasonable notice of, and an opportunity
to comment on, any proposed changes in health care benefits affecting retired employees.
For many years, all employees and retirees received the same health benefits. The
County paid 100 percent
of
employee and retiree health benefit insurance premiums. In the
mid-l 980s, the County sought to modify its health benefits program by decreasing the
County's contribution toward premiums and increasing employee and retiree co-payments. 	In
1985, the County began to negotiate proposed changes to health benefits with the various
County bargaining units. Because not all bargaining units agreed to the same health care
benefits and contribution levels, the County decided to "link" health benefits for all retirees,
regardless
of
the bargaining unit they retired from, to the benefit and contribution levels
received by unrepresented administrative management employees. Under this approach, the
County would not have to continuously track and adjust different retiree contribution levels
based on future changes to premium contribution amounts negotiated in each unit. At
the
time,
this decision appeared to be beneficial for retirees because administrative management
generally received "one
of
the better
if
not the best" package
of
health benefits among County
employees. The assistant County administrator at the time, Mike Chrystal (Chrystal), testified
that the decision to link retiree health benefits to administrative management was
communicated to the various bargaining units, the County's administrative management
council (the non-bargaining representative of management employees) and SCARE
representatives. Chrystal further testified that he did not hear any opposition to the linkage.
SCLEA's 	disputed 	SCSOEA 	predecessor to SCLEA) was given 	of
the County's decision to link retiree health benefits with unrepresented administrative
management and denied having any knowledge of the County's practice prior to April 2007.
4

During negotiations in 1989 for a new contract, the County proposed establishing a
two-tiered system that imposed a length
of
service requirement before an employee would be
eligible to receive retiree health benefits. Existing employees would continue to be eligible for
retiree health benefits without regard for their length
of
service. Employees hired after July
1,
1990, however, would have to work for ten years prior to becoming eligible to receive lifetime
retiree health insurance, and would have to work for twenty years to receive additional
coverage for a spouse or dependent. For the first time, language concerning retiree health
benefits was placed in the 1990-1994 MOUs between the County and SCSOEA. The relevant
MOU language4 stated:
a.	
Currently, the County contributes to the cost
of
a health
plan for its retirees and their dependents. For any employee who
is newly hired or rehired by the County or any other agency
covered by this Memorandum after July
1,
1990, this benefit shall
only be available upon the employee's retirement under the
circumstances described herein.
b. 	With respect to this retiree, he or she must have been
employed with the County for a period
of
at least ten (10) years
( consecutive
or.
non-consecutive) which may include employment
with the County prior to July
1,
1990, and must have been a
contributing member (or a contribution was made on the
employee's behalf)
of
the County's Retirement System for the
same length of time. Upon meeting these two conditions, the
County shall contribute for the retiree only the same amount
towards a health pian premium as it contributes to an active
single employee in the same manner and on the same basis as is
done at the time for other retirees who were hired or rehired
before July
1,
1990. The retiree may enroll eligible dependents in
the group health plan covering the retiree, but the retiree is
responsible for the total dependent(s) premium(s).
c. 	When such an employee has been employed by the
County for a period of at least twenty (20) years (consecutive or
non-consecutive) 	may ...
~··~~·~
employment with the
The relevant language is identical in the 1990-1994 MOU s covering corrections and
probation employees (supervisory and non-supervisory) and law enforcement (supervisory and
non-supervisory).
5

County prior to July
1,
1990, and has been a contributing member
(or a contribution was made on the employee's behalf)
of
the
County's Retirement System for the same length
of
time the
County shall also contribute for one dependent the same amount
towards a health plan premium as it contributes to an active
employee with one dependent and in the same manner and on the
same basis as is done at the time for other retirees who were hired
or rehired before July
1,
1990. The retiree with twenty (20) or
more years
of
County service may enroll eligible dependents in
the group plan covering the retiree, but the retiree is responsible
for the total premium cost
of
more than one dependent. In no
event shall employees hired or rehired after July
1,
1990 be
entitled to receive greater contributions from the County for a
health plan upon retirement than the County pays for employees
hired or rehired before July
1,
1990 upon their retirement.
d.	
Employees who were employed by the County prior to
July
1,
1990, but who were laid off thereafter shall not be subject
to the restrictions above, provided that they are subsequently
restored to County employment and rejoin the Sonoma County
Employees' Retirement System.
(Emphasis added.)
SCLEA's witnesses all testified that the negotiations concerning retiree health benefits
focused on the tiering proposal and denied that there was ever any discussion about retiree
benefits being linked to unrepresented administrative management. Several witnesses testified
that they had always understood and "assumed" that retiree benefits would remain the same
as
those
of
the bargaining unit from which the employee retired. Former SCSOEA president and
negotiator Shaun Du Fosee (Du Fosee) testified that he was told at the time he was hired in
1984 that he would receive the same medical benefits when he retired as when he was
working. 5 John Dooley, SCSOEA's co-spokesman during the negotiations for the 1990
MOUs, operated under the assumption that "active employee" meant "bargaining unit
employee." 	SCSOEA 	Clarence Faria 	negotiator
Gary Zanolini each also testified that they understood "active employee" as used in the MOU
5 At the time, all County employees and retirees received the same health care benefits.
6

to mean bargaining unit employee. On the other hand, Chrystal testified for the County that
the existing link between retirees and administrative management
\Vas
discussed during
bargaining and that the language was not intended to change that linkage.
The ALJ determined that the testimony
of
SCLEA's witnesses was more credible than
that
of
Chrystal on the issue
of
whether the linkage between retirees and administrative
management was discussed during the 1989 negotiations. The ALJ further concluded that the
evidence failed to establish that the linkage was disclosed during the 1985 negotiations.
Since 1990, the County has continued to provide retirees with the same health insurance
benefits it provides to unrepresented administrative management employees. Although the
County has adjusted the percentage contribution rate over the years, the premium contribution
rates actually paid by retirees have always been the same as those paid by unrepresented
administrative management. During most
of
this same time period, the premium contribution
rates paid by employees in the SCLEA bargaining units have been different from those
paid
by
administrative management and retirees.6 For example, in 1992, the contribution rate
for law
enforcement non-supervisory employees in the SCLEA bargaining unit was 6 percent
of
the
health care premium, while the rate for administrative management and retirees was 9 percent.
In 1994, the contribution rate for bargaining unit employees was 7 percent, while the
rate
for
administrative management and retirees was
11
percent. In 2006-2007, the rate for bargaining
unit employees was
15
percent, while the contribution rate for administrative management and
retirees was 16 percent. In only five out
of
the seventeen years between 1991 and 2007 have
A summary of the information contained in open enrollment booklets for this time
period indicates that the premium contribution rates paid by both retirees and administrative
management employees during this time period were equal to or higher than those paid by
current bargaining unit employees.
7

retirees and administrative management employees paid the same amount for health insurance
premiums as bargaining unit employees.
Changes to the plan design and the linkage with administrative management were also
discussed at meetings
of
the County's Joint Labor Management Benefits Committee (JLMBC)
in 2003 and 2004. All employee organizations and SCARE are invited to attend these
meetings, and all receive copies
of
the agendas and minutes whether they attend or not.
Du Fosee attended those meetings regularly on behalf
of
SCLEA and was an active participant.
At the meetings, County representatives distributed open enrollment booklets that identified
the premium rates applicable to each plan. A separate booklet covered retirees. County Risk
Manager Marcia Chadbourne (Chadbourne) testified that the issue
of
the linkage between
retirees and administrative management came up frequently at JLMBC meetings and
that
SCARE representatives "would always make mention
of
the linkage to administrative
management and that the County couldn't change anything for them unless they changed it for
administrative management." For example, during the course
of
two or three JLMBC meetings
in 2003, the County discussed eliminating its prescription drug coverage for retirees
and
implementing the Medicare Part D prescription drug plan instead. However, the County did
not make the change after the retirees "emphasized very strongly that they were tied to
administrative management, and
if
the County were to make any changes to the prescription
drug benefit that it would have to make the same change for administrative management
because they've always been tied to the same benefit as administrative management."
Chadbourne further testified that it was "common knowledge" that retirees were linked
minutes 	March 4, 2004 meeting state that, 	a
question was raised regarding whether active employees are funding the retiree health
program, it was explained that active employees do not contribute to retiree medical benefits,
8

the agreement made between SCARE and the County in 1985 ties retirees to administrative
management costs; and that retirees are required to make the same contribution toward medical
benefits as active administrative management employees. The minutes
of
the March 18, 2003
meeting indicate that health plan changes were discussed at that meeting and include, as
an
attachment, a chart showing agreed-upon changes to deductibles and co-payments for the
various bargaining units that would become effective in July 2003 and July 2004. The
chart
indicates that different changes would be implemented at different times for the different
bargaining units, and lists retirees for all units separately. The chart was also included
in
the
open enrollment booklets distributed to employees and retirees and made available at
the
JLMBC meetings.
Du
Fosee was present at both
of
these meetings and others, but stated that he
did not
recall any discussion
of
a linkage between retirees and administrative management.
	He did
not, however, deny that such discussions occurred. In addition, he testified that SCLEA did
not investigate whether the County was complying with his understanding
of
the
:t--.10U
prov1s1on.
The linkage between retirees and administrative management is also identified
in
a
four-page "Frequently Asked Questions" booklet produced in 2003 by the County's
risk
management staff and distributed to employees considering retirement and at retiree
pre-
planning workshops. The booklet states:
WHO DETER.MINES HOW MUCH I PAY FOR HEALTH
INSURANCE?
Retirees have traditionally been linked to county management
contributions. Retirees pay a monthly
contribution equivalent to management's bi-weekly contribution.
Currently retiree's [sic] pay 15% of the total premium cost.
9

Finally, the existence
of
a linkage between retirees and administrative management is
reflected in correspondence between SCARE representatives and the County. For example, a
letter dated February 16, 2007 from Richard Gearhart, SCARE president and former director of
human resources/personnel for the County, to the current director
of
human resources
repeatedly asserts that retiree health insurance benefits are to be linked to administrative
management. 	Similarly, a letter dated January 31, 2001, from then-SCARE President
Maureen Latimer to Chrystal refers to the existence
of
that link since 1985.
In summary, the evidence demonstrates that, notwithstanding any ambiguity in
the
contract language and the subjective beliefs
of
some SCLEA representatives, the County had a
longstanding practice
of
providing the same health insurance benefits to retirees as it did for
unrepresented management, and that it provided different benefits to current SCLEA
bargaining unit employees. SCARE supported and advocated for the continuation
of
this
practice for over 20 years. The practice is reflected in documents distributed to employees and
was discussed at JLMBC meetings in the presence
of
SCLEA's representative.
The County has never maintained records identifying retirees by bargaining unit
or
former employee classification. Thus, in order to tie retiree health insurance benefits
to
the
benefits received by current bargaining unit employees, the County would have to determine
the job classification and bargaining unit in which the retiree was employed prior to retirement.
In cases where the classification no longer exists, the County would have to determine which
classification and bargaining the retiree should be assigned for purposes of determining retiree
health benefits. In addition, where retirement benefits are being provided to survivors
of
retirees, a determination would have to be made concerning the bargaining unit to which the
retiree belonged at the time of retirement. SCERA also does not have the ability to track
individual retirees by bargaining unit and has never done so.

2007 Resolution
Prior to 2007, the County paid 84 percent
of
the total premium for any medical plan for
unrepresented management and retirees. At the January 25, and February
6,
2007 JLMBC
meetings, County Human Resources Director Ann Goodrich (Goodrich) discussed a proposal
to make changes to the health plan design and contribution methodology, known as the "85-Y"
plan. Under this plan, the County would limit its contribution to
85
percent
of
the lowest cost
medical plan and cease making contributions that exceeded that amount until the lowest cost
plan contribution reached that amount. 	The County requested that the bargaining units reopen
negotiations early to consider this proposal, but they declined to do so. Goodrich further
testified that, at the meetings, the County stated it would go forward and implement the
changes for unrepresented management and that both she and Employee Relations Manager
Ken Couch stated that, since the retirees were tied to unrepresented management, the change
would affect them as well. Du Fosee was present at the January 25, 2007 meeting.
On April 10, 2007, the County's Board
of
Supervisors adopted a resolution
implementing the 85-Y plan for unrepresented management employees and retirees, effective
July I, 2008. Following negotiations with SCLEA and reaching impasse, the County
unilaterally implemented the 85-Y plan on the SCLEA bargaining unit in January 2008. 7
THE COUNTY'S EXCEPTIONS
The County advances four principal arguments. First, the County contends that the
charge is time-barred because SCLEA knew or should have known
of
the County's actual
practice of linking retiree health benefits to administrative management more than six months
prior to filing the charge. Second, 	County asserts
After the appeal in this case was filed, the Board determined that the County's
unilateral implementation did not violate the MMBA. (County
of
Sonoma (2010) PERB
Decision No. 2100-M.)
11

retiree health benefits to current unit employees and that, therefore, the County did not engage
in an unlawful unilateral change in an established policy or past practice. Third, the County
contends that retiree health insurance benefits are not within the scope
of
representation.
Finally, the County contends that the remedy imposed by the ALJ inappropriately extends to
retirees who were not employees at the time the charge was filed.
DISCUSSION
Statute
of
Limitations
PERB is prohibited from issuing a complaint with respect to any charge based
upon
an
alleged unfair practice occurring more than six months prior to the filing
of
the charge.
(Coachella Valley Mosquito & Vector Control Dist.
v.
California Public Employment
Relations Bd. (2005) 35 Cal.4th 1072.) The limitations period begins to run once the charging
party knows, or should have known,
of
the conduct underlying the charge. (Gavilan
Joint
Community College District (1996) PERB Decision No. 1177 (Gavilan).) 8 A charging party
bears the burden
of
demonstrating that the charge is timely filed. 	(Tehachapi Unified
School
District (1993) PERB Decision No. I 024; State
of
California (Department
of
Insurance)
(1997) PERB Decision No. 1197-S.) In unilateral change cases, the limitations period begins
to run when the charging party has actual or constructive notice
of
the respondent's clear intent
to in1plement a unilateral change in policy, provided that nothing subsequently evinces a
wavering
of
that intent. (The Regents
of
the University a/California (1990) PERB Decision
No. 826-H.) Thus, a charging party that rests on its rights until actual implementation
of
the
change bears the risk
of
running afoul of the statute
of
limitations. (South Placer Fire
Protection 	(2008) PERB
When 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. (Fire Fighters Union v. City
of
Vallejo (1974) 12 Cal.3d 608.)
12

to the union is a factor in determining whether the employer made an unlawful unilateral
change, such notice is not required in determining whether the charge was filed within the
statute
of
limitations; rather, the question is whether the union had or should have had
knowledge. (City
of
Alhambra (2009) PERB Decision No. 2036-M, adopting ALJ's proposed
decision citing Gavilan, supra, and Grant Joint Union High School District (1982)
PERB
Decision No. 196 (Grant).)
The amended complaint alleges that the operative unilateral change was the
County's
April 2007 resolution altering the County's policy on retiree health insurance contributions by
tying them to the contributions made for active unrepresented management employees. 	Thus,
SCLEA does not challenge directly the change in contribution rates from 85 percent
of
any
plan to 85 percent
of
the lowest cost plan. Rather, SCLEA asserts that the 2007 resolution
changed the linkage
of
retiree benefits from a link with current bargaining unit employees to a
link with administrative management employees. However, such a change,
if
any,
occurred
not in April 2007 but much earlier in 1985, when the county began negotiating different health
care benefits with different bargaining units, or in 1990, when the parties agreed to
language
in
their MOU expressly addressing the issue
of
retiree health care benefits. The 2007 resolution
did not change the linkage, but only changed the contribution rate for administrative
management and, consequently, retirees. The 1990 MOU changes did not change the
past
practice regarding linkage, but only established a two-tier system
of
eligibility for retiree
health care benefits.
The evidence established that the County had a practice for over 20 years
of linking
retiree health 	benefits to n,,.,,,,,.-i-,tc received by administrative H"--"-"'-'-"'-
	his
capacity as SCLEA's representative, Du Fosee regularly attended JLMBC meetings where the
linkage was discussed, most significantly the March 4, 2004, meeting for which the minutes
13

specifically reflect that it was explained to those present that the agreement made between
SCARE and the County in 1985 ties retirees to administrative management costs, and the
March 18, 2003, meeting during which a chart showing agreed-upon health care plan changes
shows retirees listed separately from bargaining unit employees. In addition, in 2003,
there
were extensive discussions at several JLMBC meetings about a proposal by the County
to
eliminate the prescription drug benefit and implement the Medicare Part D plan. 	The retirees
present at these meetings objected strenuously to the County's proposal, arguing that
the
County could not eliminate the benefit because the retirees' health benefits were linked
to
those
of
the administrative management employees. Moreover, the existence
of
the
linkage
was discussed at the January 25, 2007 meeting, in Du Fosee's presence, when the
County
stated its intention to implement the 85-Y plan for unrepresented management and retirees.
The agenda and minutes
of
those meetings were provided to SC LEA and other employee
organizations, whether or not they attended.
14
Given Du Fosee's active participation in the JLMBC where the linkage between
administrative management and retirees was clearly and openly discussed on many occasions,
and given SCLEA's status as the exclusive representative
of
bargaining unit employees
and
future retirees, we find it implausible that SCLEA was unaware that the County had a practice
for over 20 years
of
making contributions for retiree health benefits that differed from
those
paid on behalf
of
current bargaining unit employees. Thus, we conclude that SCLEA
knew
or
should have known
of
the County's practice of paying the same contributions for retirees as it
did for administrative management long before April 2007. Accordingly, the charge
filed
on
August
1,
2007 was not 	filed.

Unilateral Change
We
next consider whether, even
if
the charge were timely filed, the evidence
established an unlawful unilateral change. 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 .)
Unilateral changes are considered "per se" violations
if
certain criteria are met. Those
criteria
are: ( 1) the employer breached or altered the parties' written agreement or its own established
past practice; (2) such action was taken without giving the other party notice or an opportunity to
bargain over the change; (3) the change was not merely an isolated breach
of
the contract,
but
amounts to a change in policy (i.e., it has a generalized effect or continuing impact upon
bargaining unit members' terms and conditions
of
employment); and (4) the change in
policy
concerns a matter within the scope
of
representation. (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 Assn.
v.
City ofStockton (1984) 161 Cai.App.3d 813;
Grant.)
Written Agreement
The parties each argue that Section 18.16
of
the MOU established a contractual
basis
for
determining retiree health insurance benefits. SCLEA asserts that "the plain language
of
Section 18.16 links current SCLEA bargaining unit members to retired SCLEA bargaining unit
members," and that "[t]he parties' bargaining history shows that both parties have consistently
understood 	uu1,.,:_,.,,_,._. the term 'active single employee' as meaning a single, active SCLEA
member." The County, on the other hand, asserts that Section 18 codified the parties' practice of
linking retiree health benefits to unrepresented management. For the following reasons, we
15

conclude that the contract language is ambiguous and does not clearly support either party's
interpretation.
Although PERB does not have jurisdiction to resolve pure contract disputes, it may
interpret contract language
if
necessary to do so to decide an unfair practice charge case.
(Regents
of
the University
of
California (Davis) (2010) PERB Decision No. 2101-H (Regents);
County
of
Ventura (2007) PERB Decision No. 1910-M.) In such cases, traditional rules
of
contract law guide the Board's interpretation
of
collective bargaining agreements. (Regents;
National City Police Officers' Assn.
v.
City
of
National City (2001) 87 Cal.App.4th 1274, 1279;
Grossmont Union High School District (1983) PERB Decision No. 313.) A contract must
be
interpreted so as to give effect to the mutual intention
of
the parties as it existed at the time
of
contracting, so far as the same is ascertainable and lawful. (Civ. Code, § 1636.) Where
contractual language is clear and unambiguous, it is unnecessary to go beyond the plain language
of
the contract itself to ascertain its meaning. (Civ. Code,§ 1638; City
of
Riverside (2009)
PERB Decision No. 2027-M; Marysville Joint Urzified School District (1983) PERB Decision
No. 314 (Marysville).) "The whoie
of
a contract is to be taken together, so as to give effect to
every part,
if
reasonably practicable, each clause helping to interpret the other." (Civ. Code,
§ 1641.) Thus, "the Board must avoid an interpretation
of
contract language which leaves a
provision without effect." (State
of
California (Department
of
Corrections) (1999) PEP R
Decision No. 1317-S.) 	However, where the contract language is silent or ambiguous,
the
policy
may be ascertained by examining past practice or bargaining history. (Marysville, supra, citing
Rio Hondo Community College District (1982) PERB Decision No. 279 and Pajaro Valley
Unified School District (1978) PERB Decision No. 51; King City Joint Union High School
District (2005) PERB Decision No. 1777.)
16

The operative language
of
Section 18.16 states that the County "shall contribute for the
retiree only the same amount towards a health plan premium as it contributes to an active
single employee in the same manner and on the same basis as is done at the time for other
retirees who were hired or rehired before July
1,
1990." Nowhere in the MOUs is the term
"active single employee" (or "active employee") defined. While Section 3.2
of
the MO Us
defines "Employee" as "any person legally employed by the County and a member
of
the
bargaining unit represented by the Association," nothing on the face
of
the contract indicates
that "employee" as used in Section 3
.2
is synonymous with "active single employee" as used in
Section 18.16. Such a construction would appear to be inconsistent with Section 3.1, entitled
"Non-Application," and which states: "None
of
the following definitions are intended to apply
in the administration
of
the County Employees' Retirement Law
of
1937 or to the County's
Civil Service Ordinance nor the Rules
of
the Civil Service Commission."
Adding to this ambiguity is the language in Section
18
.16 that specifies that retiree
contributions are to be made "in the same manner and on the same basis" as is done for other
retirees hired or rehired before July
1,
1990. In the absence
of
any further explanation
of
this
provision, we find the contract language ambiguous as to the meaning
of
the term "active
single employee" and the manner and basis upon which contributions are to be made.
Because the contract language is ambiguous, we look to extrinsic evidence to determine
the parties' intent. The parties dispute the manner and basis in which contributions were made
for retirees both prior to July 1, 1990 and thereafter. Nothing in the record before us indicates
that, during the 1989 negotiations over Section 18.16, the 	ever discussed the meaning of
the term "active single employee" or 	manner and basis upon which
,."'~'"'"'"'
health insurance
contributions were to be made. Instead, both parties acknowledge that the negotiations focused
only on the County's "tiering" proposal that established waiting periods before employees
17

hired after July
1,
1990 would be eligible to receive retiree health care benefits. While the
SCLEA witnesses testified that they "assumed" retiree health benefits would be linked to the
benefits received by current bargaining unit employees, there was no evidence that such a
linkage was ever discussed or that it had ever existed. Instead, the only evidence
of
a
discussion
of
the linkage came from Chrystal, who testified that the linkage with
administrative management was discussed during negotiations.
Based upon our review
of
the MOU and the extrinsic evidence, we conclude that
the
MOU does not establish a written agreement to link retiree health insurance benefits to current
bargaining unit employees. Therefore, we consider whether the County has breached
an
unwritten but established past practice.
Past Practice
For a past practice to be binding, it must be: (1) unequivocal; (2) clearly enunciated and
acted upon; and (3) readily ascertainable over a reasonable period
of
time as a fixed and
established practice accepted by both parties. (Desert Sands Unified School District
(2010)
PERB Decision No. 2092; Riverside Sheriffs Assn.
v.
County
of
Riverside (2003)
106 Cal.App.4th 1285, 1291.) PERB has also described an enforceable past practice as
one
that
is "regular and consistent" or "historic and accepted." (Hacienda La Puente Unified School
District (1997) PERB Decision No. 1186, adopting proposed dee.
of
the ALJ, at p. 13;
County
of
Placer (2004) PERB Decision No. 1630-M. See also, County
of
Sacramento (2009)
PERB
Decision No. 2043-M (County
of
Sacramento
I);
County
of
Sacramento (2009) PERB Decision
No. 2044-M (County
of
Sacramento II); County
of
Sacramento (2009) PERB Decision
No. 2045-M (County
of
Sacramento Ill) cases, finding 20-year practice of providing retiree
dental and medical insurance to constitute a binding past practice.) 	The burden is on SCLEA to
establish that the County breached an established past practice. (San Francisco Unified School
18

District (2009) PERB Decision No. 2057; City
of
Commerce (2008) PERB Decision
No. 1937-M.) To
do
so, SCLEA must plead and prove facts demonstrating the unequivocal,
fixed, and longstanding past practice. (Regents
of
the University
of
California (2010) PERB
Decision No. 2109-H.)
The evidence presented does not establish that the County had an unequivocal, clearly
enunciated and acted upon, and readily ascertainable past practice, accepted by both parties,
of
linking retiree health insurance benefits to the benefits received by current bargaining unit
employees. Nor does the evidence establish that such a practice was "regular and consistent" or
"historic and accepted." While SCLEA may have believed this to be the practice, it did
not
rebut
the County's evidence that, in fact, the actual contributions paid by the County on behalf
of
retirees since at least 1990 exactly mirrored those paid on behalf
of
umepresented management,
and were different from those paid on behalf
of
bargaining unit employees. Coupled with
evidence that the linkage with administrative management was reflected in documents provided
to potential retirees and discussed repeatedly at JLMBC meetings at which the SCLEA president
was present and whose agenda and minutes were provided to SCLEA, correspondence
with
SCARE representatives, and the testimony
of
the County's witnesses that the County and
SCARE lack the ability to track retirees by bargaining unit, we cannot conclude that
SCLEA
established the existence
of
a binding past practice
of
linking retiree health benefits to
the
benefits received by bargaining unit employees. Accordingly, SCLEA has not met its
burden of
proving a unilateral change in an established past practice.9 Therefore, a prima facie case
of
unlawful unilateral change has not been established.
10
Because we find that SCLEA failed to meet its burden of proving the existence
of
an
established past practice, we need not reach the issue of whether the other elements
of
a prima
facie case of unilateral change were met. Were we to do so, however, we would reject the
County's argument that Section 31962 excludes the retiree health insurance benefits at issue in
this case from the scope of representation. It is well established that, while an employer has no
19

ORDER
The complaint and underlying unfair practice charge in Case No. SF-CE-456-M are
hereby DISMISSED.
Members McKeag and Wesley joined in this Decision.
duty to bargain over retiree health insurance benefits, the future retirement benefits
of
current
employees, including retirement health benefits, are mandatory subjects
of
bargaining.
(County
of
Sacramento
1;
County
of
Sacramento
11;
County
of
Sacramento
111;
Madera Unified
School District (2007) PERB Decision No. 1907.) While a subject governed by a mandatory
statute that "clearly evidences an intent to set an inflexible standard or insure immutable
provisions," (San Mateo City School Dist.
v.
Public Employment Relations Bd. (1983)
33
Cal .3d 850) may preclude collective bargaining over a subject governed by the statute
(Board
of
Education
v.
Round Valley Teachers Assn. (1996) 13 Cal.4th 269), Section
31692 of
the County Retirement Law expresses no such intent. Instead, it authorizes the County to
amend or repeal an ordinance or resolution providing for such benefits, but is silent on
the
issue
of
whether such amendment or repeal may be bargained. Requiring the County
to
bargain prior to implementing such a change is not inconsistent with the language
of
Section 31692. Accordingly, we conclude that Section 31692 does not supersede the
obligation to bargain over the retiree health benefits in this case.
10 The County argues that the remedy imposed by the ALJ inappropriately extends to
retirees who were not employees at the time the charge was filed. 	Because we dismiss the
complaint, we need not reach this issue. However, were we to do so, we would reject
the
County's argument. (County
of
Sacramento
111;
Holtville Unified School District (1982) PERB
Decision No. 250; Corning Union High School District (1984) PERB Decision No. 399.)
20