City of Modesto (PERB 1724M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MODESTO CITY EMPLOYEES ASSOCIATION,
Charging Party, Case No. SA-CE-193-M
V. PERB Decision No. 1724-M
CITY OF MODESTO, December 15, 2004
Respondent.

Appearances: Goyette & Associates by W. Robert Phibbs, Attorney, for Modesto City
Employees Association; Liebert Cassidy Whitmore by Kyla Christoffersen, Attorney, for City
of Modesto.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Modesto City Employees Association (Association) of a
Board agent’s dismissal (attached) of its unfair practice charge. The charge alleged that the
City of Modesto (City) violated the Meyers-Milias-Brown Act (MMBA)' by the City’s failure
to maintain its past practice of health benefit parity for unit employees. The Association
alleged that this conduct constituted a violation of MMBA section 3505.

The Board has reviewed the entire record in this matter, including the unfair practice
charge, the City’s response, the amended unfair practice charge, the Association’s appeal, and
the City’s response to the Association’s appeal. The Board finds the warning and dismissal

letters to be without prejudicial error and adopts them as a decision of the Board itself, subject

to a brief discussion of the issues raised on appeal.

'MMBA is codified at Government Code section 3500, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

DISCUSSION
In determining whether a party has violated MMBA section 3505 and PERB Regulation
32603(c),2 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
"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 Emolovees Assn. 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.)
While health care premiums are a matter within the scope
of
representation (Trustees
of
the California State University (1996) PERB Decision No. 1174-H; Temple City Unified
School District (1990) PERB Decision No. 841), however, we find that the Association did not
meet the first criterion by showing that the City changed its policy. The Association argues
that an alleged past practice
of
parity among bargaining units, based upon a statement made
during negotiations, should supersede language 	the memorandum
of
understanding (MOU).
2PERB Regulations are codified at California Code
of
Regulations, title 8, section
31001, et seq.
3When 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 [116 Cal.Rptr.
507].)
2

The Association argues that the Board agent misread MOU Article 53, the zipper clause, to
preclude negotiations over this alleged past practice.
Both parties argue that Marysville Joint Unified School District (1983) PERB Decision
No. 314 (Marysville) supports their positions. In Marysville, at pages 8-9, the Board held:
An employer violates its duty to negotiate in good faith when it
unilaterally changes an established policy affecting a negotiable
subject matter without affording the exclusive representative a
reasonable opportunity to bargain. (Citations.) Established
policy may be embodied in the terms
of
a collective agreement
(citation) or, where a contract is silent or ambiguous as to a
policy, it may be ascertained by examining past practice or
bargaining history. (Citations.) However, where contractual
language is clear and unambiguous, it is unnecessary to go
beyond the plain language
of
the contract itself to ascertain its
meanmg.
(Emphasis added.)
There is no dispute that MOU Article 34 provides a schedule
of
employer health care
premiums for the duration
of
the MOU. In addition, assuming that a past practice existed, the
MOU does not contain any provision for health premium parity among bargaining units.
MOU Article 53, the zipper clause, provides, in pertinent part:
The parties acknowledge that during the negotiations which
resulted in this Agreement, each had the full right and adequate
opportunity to make demands and proposals with respect to any
subject or matter within the scope
of
representation, that the
understandings arrived at after the exercise
of
that right are set
forth in this Agreement. The express provisions
of
this
Agreement for its duration, therefore, constitute the complete and
total contract between the City and MCEA with respect to wages,
hours and other terms and conditions
of
employment. Any prior
or existing Agreement between the parties, whether formal or
informal, regarding any such matters is hereby superseded and
terminated in its entirety. The parties voluntarily waive the right
to meet and confer in good faith with respect to any subject or
matter referred to or covered in this Agreement, except that the
parties, by mutual agreement, may meet and confer and agree to
amend any matter in this Agreement, including compensation;
provided, however, that the City may make changes to the
personnel rules consistent with rights MCEA has to meet with the
City prior to implementation of such changes.

All pertinent ordinances and resolutions shall be revised to
conform with this Agreement. All other ordinances, resolutions,
rules and regulations, practices and policies shall continue in
force and effect during the term of this Agreement unless
modified according to the provisions of this Agreement.
(Emphasis added.)
Here, the language is not "silent or ambiguous." The above provision clearly and
unambiguously precludes bargaining "with respect to any subject or matter referred to or
covered in this Agreement" absent the mutual agreement of the parties. Although the
Association cites the last sentence in the last paragraph to support its position, the Association
ignored the phrase "all other" and "unless modified according to the provisions of this
agreement" in interpreting this sentence. In this context, we conclude that under MOU Article
53, the express provision setting a health benefit premium payment schedule in MOU Article
34 supersedes the alleged past practice of premium parity among bargaining units. This
finding conforms to the holding in Marysville, cited above.
Finally, the Association cites Los Angeles Community College District ( 1982) PERB
Decision No. 252 (LACCD) for the principle that zipper clauses should not preclude
negotiations over health benefit parity. In effect, the Association argues that the City should
have invoked the zipper clause when Modesto Police Officers Association and Modesto Police
Management Association sought to negotiate health benefit premiums. In LACCD, the
employer unilaterally changed shifts from those set forth in the contract without providing
notice or opportunity to bargain to the union. The employer cited a contractual zipper clause,
stating that it precluded the employer from having to negotiate the shift changes. Here, the
Board held that the zipper clause did not accord the right to the employer to unilaterally change

or eliminate shifts. The Board also held that the zipper clause did not clearly and unmistakably
waive a right to negotiate, stating:
The purpose
of
a zipper clause is to foreclose further requests to
negotiate regarding negotiable matters, even
if
not previously
considered, during the life
of
a contract. It does not, however,
cede to the employer the power to make unilateral changes in the
status quo.
We do not see the applicability
of
this case to the instant matter. In this case, there is
no dispute that the parties have agreed to a health care premium schedule in Article 34
of
the
MOU and that there is no provision in the MOU establishing parity in premium payments
among bargaining units. There is no argument that the City has breached Article 34. We also
reject the Association's argument that the City breached the MOU through its strained
interpretation
of
the last paragraph
of
the zipper clause. We, therefore, find that there is no
breach
of
the MOU. We further find that under Article
53
of
the MOU, the City is not
obligated to negotiate a change to Article 34. Consequently, the City did not make an unlawful
change in policy and thus did not violate the MMBA.
ORDER
The unfair practice charge in Case No. SA-CE-193-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Neima joined 	this Decision.

'
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031
18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8387
Fax: (916) 327-6377
February 5, 2004
W.
Robert Phibbs, Attorney
Goyette & Associates
1300 G Street, Suite 200
Modesto, CA 95354
Re: 	Modesto City Employees Association
v.
City
of
Modesto
Unfair Practice Charge No. SA-CE-193-M
DISMISSAL LETTER
Dear Mr. Phibbs:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 14, 2003. The Modesto City Employees Association
(MCEA) alleges that the City
of
Modesto (City) violated the Meyers-Milias-Brown Act
(MMBA)1by failing to maintain the status quo
of
health benefits parity for employees in the
unit MCEA represents.
I indicated to you in my attached letter dated January 13, 2004, that the above-referenced
charge did not state a prima facie case. You were advised that,
if
there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. You were further advised that, unless you amended the charge
to state a prima facie case or withdrew it prior to January 23, 2004, the charge would be
dismissed.
You were granted an additional week to respond to the questions raised in my letter. 	On
January 30, 2004, you filed an amended charge in which you respond to my discussion
of
the
PERB precedent in the area, chiefly Marysville Joint Unified School District (1983) PERB
Decision No. 314.
The basis
of
your amended charge is that PERB should ignore contractual language that is
"clear and unambiguous" in order to find the City failed to maintain MCEA parity with other
City recognized employee organizations in health premium cost coverage. You point out that,
the Board indicated in Marysville, supra that "Absent any evidence
of
bargaining history, we
cannot infer the parties intended to attach a meaning to ... their agreement contrary to its plain
meaning."
You assert that the City's maintenance of parity for ten years and the City's representatives
comments in 2000 that all units will "be treated the same" created a past practice and evidence
1 The MMBA is codified at.Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

of
bargaining history that should allow the Board to issue a complaint. You would have
PERB connect the dots and draw an inference that Article
53
when it states "Any prior or
existing Agreement between the parties, whether formal or informal, regarding any such
matters is here by superceded and terminated in its entirety ... " does not mean what it says in
this circumstance.
As I indicated, the language
of
Articles
53
and 34
of
the current MOU between MCEA and the
City establishes a rate
of
employer contributions for employee healthcare costs which may be
altered
if
both parties agree to reopen discussions. The City indicated it did not wish to reopen
those discussions with MCEA pursuant to Article 53.
Based on the clear language
of
the parties written agreement, I cannot find a violation
of
the
status quo. 	The Board stated that in determining whether a past practice supercedes contract
language, held that ... "where contractual language is clear and unambiguous, it is unnecessary
to go beyond the plain language
of
the contract itself to ascertain its meaning." To find the
contract does not state what it clearly does, creates a slippery slope for PERB to follow, and
one in which you have provided no other authority. Therefore, I am dismissing the charge
based on the facts and reasons contained in my January 13, 2004, letter.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review
of
this dismissal
of
the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close
of
business (5 p.m.)
on the last day set for filing. 	(Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close
of
business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements
of
Regulation 32135(d), provided the filing party also places the original,
together with the required number
of
copies and proof of service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Regulation 32635(b
).
)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first~class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Regulation 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By~k~$:~'	
---+-m-~-th
	__
~_,_~
	______
_
Labor Relations Specialist
Attachment
cc: Kyla Cristoffersen

3

(
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8387
Fax: (916) 327-6377
January 13, 2004
W. Robert Phibbs, Attorney
Goyette & Associates
1300 G Street, Suite 200
Modesto, CA 95354
Re: 	Modesto City Employees Association v. City
of
Modesto
Unfair Practice Charge No. SA-CE-193-M
WARNING LETTER
Dear Mr. Phibbs:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 14, 2003. The Modesto City Employees Association
(MCEA) alleges that the City
of
Modesto (City) violated the Meyers-Milias-Brown Act
(MMBA)1 by failing to maintain the status quo
of
health benefits parity for employees in the
unit MCEA represents.
Investigation
of
the charge revealed that MCEA and the City are parties to a written agreement
that has a term
of
8/1/2000 - 7/25/05. In 2000 during negotiations for the current agreement,
City representatives committed to MCEA that "All bargaining units were equally valued", and
"All bargaining units will be treated the same." Subsequently, Modesto Police Officers
Association (MPOA) and Modesto Police Management Association (MPMA) accepted the
offer that the City had made to MCEA for the following monthly premium payments for
health, vision and dental plans.
2000 	$386.76
2001 	$416.76
2002 	$456.76
2003 	$486.76
2004 	$516.76
The amount the City contributes to employee benefits was agreed to by MCEA and became
effective August 1
of
each year through Article 34 of the MOU.
Modesto City Fire Fighters Association (MCFF A) and the City failed to reach agreement in
2000. The City's proposal was ultimately implemented, but through an arbitration award
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

issued on May 2, 2002. The amounts of healthcare premium costs for employees in MCFFA's
unit were increased as follows:
1/1/2000 	$406.63
7/31/2001 	$451.63
7/30/2002 	$506.63
7/29/2003 	$571.63
12/30/2003 $646.63
Following notice of the arbitration award involving MCFFA, representatives ofMPOA and
MPMA sought to have the City alter the employer's contributions to healthcare costs for
employees in their units. The City agreed to reopen negotiations with MPOA and MPMA and
on February 11-, 2003, the City Council agreed to new rates with both of those employee
organizations. The new rates for those units were:
3/25/03 	$556.76
8/1/03 	$656.76
8/1/04 	$731.76
In addition, a newly established unit of management and confidential employees reached
agreement with the City. That units agreement provides the following monthly employer
contributions for premium costs:
8/1/03 	$571.76
8/1/04 	$676.76
On July 3, 2003, MCEA made a demand to meet and confer with the City based on the past
practice of maintaining equal health benefits for all employees. On August 14, 2003, the City
citing the state's fiscal crisis, declined MCEA's demand. Through this charge MCEA asserts
that the City has failed to maintain status quo, that is, parity with other employee organizations
in the amount of the employer's health premium contributions.
In determining whether a party has violated Government Code section 3505 and PERB
Regulation 32603(c),2 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.) 3 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
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
3 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. (Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

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; Grant Joint Union High School District (1982)
PERB
Decision No. 196.)
In this case, the matter
of
employer contributions to healthcare premium costs is clearly within
scope. However, the current MOU does establish the ongoing employer contribution rates
through 2005 for employees in the unit. There is no reference in the agreement that you have
cited which provides for parity or a "me too" provision. Article 53
of
the 2000 	2005
MOU
Full Understanding Modification and Waiver states:
The parties acknowledge that during negotiations which resulted
in this Agreement, each had the full right and adequate
opportunity to make demands and proposals with respect to any
subject or matter within the scope
of
representation, that the
understanding arrived at after the exercise
of
that right are set
forth in this Agreement. The express provisions
of
this
Agreement for its duration, therefore, constitute the complete and
total contract between the City and MCEA with respect to wages,
hours and other terms and conditions
of
employment. Any prior
or existing Agreement between the parties, whether formal or
informal, regarding any such matters is hereby superceded and
terminated in its entirety. The paiiies voluntarily waive the right
to meet and confer in good faith with respect to any subject or
matter referred to or covered by this Agreement, except that the
parties, by mutual agreement, may meet and confer and agree to
amend any matter in this Agreement, including compensation:
provided, however, that the City may make changes to the
personnel rules consistent with rights MCEA has to meet with the
City prior to implementation
of
such changes.
In Marysville Joint Unified School District (1983) PERB Decision No. 314 the Board, in
determining whether a past practice supercedes contract language, held that ... "where
contractual language is clear and unambiguous, it is unnecessary to go beyond the plain
language
of
the contract itself to ascertain its meaning." The language
of
Articles 53 and 34
of
the current MOU between MCEA and the City establishes a rate
of
employer contributions for
employee healthcare costs which may be altered
if
both parties agree to reopen discussions.
The City does not at this time wish to reopen those discussions pursuant to Article 53.
Therefore, the claim that the City has failed to maintain status quo does not comport with the
Full Understanding Article
of
the MOU.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a

standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
corner of the charge form. The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before January 23, 2004, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
Roger Smith
Labor Relations Specialist
RCS