County of Sonoma (PERB 2242M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SEIU LOCAL 1021,
Charging Party,
V.
COUNTY OF SONOMA,
Respondent.
Case No. SF-CE-509-M
PERB Decision No. 2242-M
February 29, 2012
Appearances: 	Weinberg, Roger & Rosenfeld by Vincent A. Harrington, Jr., Attorney,
for
SEIU Local 1021; Renne, Sloan, Holtzman & Sakai by Timothy
G.
Yeung, Attorney, for
County
of
Sonoma.
Before McKeag, Dowdin Calvillo and Huguenin, .Members.
DECISION
DOWD IN CALVILLO, 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 complaint alleged that the
County violated the Meyers-Milias-Brown Act (MMBA) 1 by unilaterally changing its policy
concerning retiree health insurance benefits without giving SEIU Local 1021 (SEIU) 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 10, 2007, the County unilaterally changed the contribution amount from the same
premium costs as it paid for current employees pursuant to the parties' memorandum
of
understanding (MOU) to a maximum
of
85 percent
of
the lowest cost medical plan offered for
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
Appearances: Weinberg, Roger & Rosenfeld by Vincent A. Harrington, Jr., Attorney, for
SEIU Local 1021; Renne, Sloan, Holtzman & Sakai by Timothy G. Yeung, Attorney, for
County of Sonoma.
he MMBA is codified at Government Code section 3500 et seq. Unless otherwise	T
ndicated, all statutory references are to the Government Code.	i
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SEIU LOCAL 1021,
Charging Party,
V .
COUNTY OF SONOMA,
Respondent.
Case No. SF-CE-509-M
PERB Decision No. 2242-M
February 29, 2012
Before Mckeag, Dowdin Calvillo and Huguenin, Members.
DECISION
DOWDIN CALVILLO, 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 complaint alleged that the
County violated the Meyers-Milias-Brown Act (MMBA)' by unilaterally changing its policy
concerning retiree health insurance benefits without giving SEIU Local 1021 (SEIU) 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 10, 2007, the County unilaterally changed the contribution amount from the same
premium costs as it paid for current employees pursuant to the parties' memorandum of
understanding (MOU) to a maximum of 85 percent of the lowest cost medical plan offered for

each level of health care coverage for eligible retirees and eligible dependents, without meeting
and conferring with SEIU.
The ALJ determined that the County violated MMBA section 3505 and PERB
Regulation 32603(c)2 by unilaterally implementing a policy placing a prospective "cap" on
premium contributions to future retirees. 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 SEIU its right to represent employees in their employment relations, in violation of
MMBA section 3503 and PERB Regulation 32603(b).
The Board has reviewed the proposed decision and the record in light of the County's
exceptions and SEIU's response thereto, and the relevant law.3 Based on this review, the
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 350l(c). SEIU is
an employee organization within the meaning of Section 350l(a).
The County has provided retiree health insurance benefits since 1964. The Sonoma
County Employees' Retirement Association (SCERA) administers retiree benefits. The
County Employees Retirement Law of 1937, Government Code section 31450 et seq. (County
P PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
ERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2
3 The County's request for oral argument is denied. The Board historically denies
requests for oral argument when an adequate record has been prepared, the parties had ample
opportunity to present briefs and have availed themselves of that opportunity, and the issues
before the Board are sufficiently clear to make oral argument unnecessary. (Antelope Valley
Health Care District (2006) PERB Decision No. 1816-M; Monterey County Office of
Education (1991) PERB Decision No. 913.)
2
The County's request for oral argument is denied. The Board historically denies
requests for oral argument when an adequate record has been prepared, the parties had ample
opportunity to present briefs and have availed themselves of that opportunity, and the issues
before the Board are sufficiently clear to make oral argument unnecessary. (Antelope Valley
Health Care District (2006) PERB Decision No. 1816-M; Monterey County Office of
Education (1991) PERB Decision No. 913.)
each level of health care coverage for eligible retirees and eligible dependents, without meeting
and conferring with SEIU.
The ALJ determined that the County violated MMBA section 3505 and PERB
Regulation 32603(c) by unilaterally implementing a policy placing a prospective "cap" on
premium contributions to future retirees. 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 SEIU its right to represent employees in their employment relations, in violation of
MMBA section 3503 and PERB Regulation 32603(b).
The Board has reviewed the proposed decision and the record in light of the County's
exceptions and SEIU's response thereto, and the relevant law. Based on this review, the
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). SEIU is
an employee organization within the meaning of Section 3501(a).
The County has provided retiree health insurance benefits since 1964. The Sonoma
County Employees' Retirement Association (SCERA) administers retiree benefits. The
County Employees Retirement Law of 1937, Government Code section 31450 et seq. (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 of
retirees. (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, but attempts to
represent the interests of retirees in their dealings with the County. 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.
SEIU, however, was willing to maintain a different plan design at a higher cost to its members.
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. Indeed, the
County lacked the ability to do so because the retirement system does not track retirees by
bargaining unit. At the time, this decision appeared to be beneficial for retirees because
administrative management generally received "the richest package" of health benefits among
3
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 of
retirees. (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, but attempts to
represent the interests of retirees in their dealings with the County. 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-1980s, the County sought to modify its health benefits program by decreasing the
County's contribution toward premiums and increasing employee and retiree co-payments.
SEIU, however, was willing to maintain a different plan design at a higher cost to its members.
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. Indeed, the
County lacked the ability to do so because the retirement system does not track retirees by
bargaining unit. At the time, this decision appeared to be beneficial for retirees because
administrative management generally received "the richest package" of health benefits among
w

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 and SCARE representatives. Chrystal further
testified that he did not hear any opposition to the linkage.
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
January 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 article 12 of the 1989-1992 MOU between the County and SEIU.
The relevant :t>v10U language stated:
4
12.9 	Future Employee/Future Retiree Health Care
12.9.1 Health Plan-Retirees
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 January 	1, 1990, this benefit shall only
be available upon the employee's retirement under the following
circumstances. With respect to the retiree, he or she must have
been employed with the County for a period of at least l O years
( consecutive or nonconsecutive) after January 1, 1990, and must
have been a contributing member ( or a contribution was made on
their 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 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
January 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). When such an
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 and SCARE representatives. Chrystal further
testified that he did not hear any opposition to the linkage.
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
January 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 article 12 of the 1989-1992 MOU between the County and SEIU.
The relevant MOU language stated:
12.9 Future Employee/Future Retiree Health Care
12.9.1 Health Plan - Retirees
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 January 1, 1990, this benefit shall only
be available upon the employee's retirement under the following
circumstances. With respect to the retiree, he or she must have
been employed with the County for a period of at least 10 years
(consecutive or nonconsecutive) after January 1, 1990, and must
have been a contributing member (or a contribution was made on
their 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 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
January 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). When such an
4

employee has been employed (consecutive or non-consecutive)
by the County for a period
of
at least 20 years after January
1,
1990, and has been a contributing member (or a contribution was
made on their 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 in the same
manner and on the same basis as is done at the time for other
retirees who were hired or rehired before January
1,
1990. The
retiree with 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
January
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 January
1,
1990 upon
their retirement.
(Emphasis added.)
SEIU' s chief negotiator, Michael Allen (Allen), testified that, during the 1989
negotiations, he understood the term "active" to mean someone within the bargaining unit. A
County proposal dated August 8, 1989 regarding Article 12.9 contains a footnote, initialed by
both Allen and County negotiator Ray Myers, stating "Intent: Co[ unty] pay whatever it pays
for active [employ Jee when retiree retires and treat retiree same thereafter as it treats active
[employ ]ee contributions."
As part
of
the 1989 negotiations, SEIU opted to pay a higher percentage
of
premiums
rather than a flat rate in order to receive a higher level
of
benefits. Allen recalled that, during
1989 or the early 1990s, he heard reference to a linkage between administrative management
and retirees, and that SCARE representatives did not take his advice to have retiree health
benefits tied to current bargaining employees. Allen also testified that the negotiations focused
on the eligibility, or "tiering" requirements for retiree health insurance, rather than on the
details of the coverage because the benefit had been around for such a long time.
5
employee has been employed (consecutive or non-consecutive)
by the County for a period of at least 20 years after January 1,
1990, and has been a contributing member (or a contribution was
made on their 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 in the same
manner and on the same basis as is done at the time for other
retirees who were hired or rehired before January 1. 1990. The
retiree with 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
January 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 January 1, 1990 upon
their retirement.
SEIU's chief negotiator, Michael Allen (Allen), testified that, during the 1989
negotiations, he understood the term "active" to mean someone within the bargaining unit. A
County proposal dated August 8, 1989 regarding Article 12.9 contains a footnote, initialed by
both Allen and County negotiator Ray Myers, stating "Intent: Co[unty] pay whatever it pays
for active [employJee when retiree retires and treat retiree same thereafter as it treats active
[employjee contributions."
As part of the 1989 negotiations, SEIU opted to pay a higher percentage of premiums
rather than a flat rate in order to receive a higher level of benefits. Allen recalled that, during
1989 or the early 1990s, he heard reference to a linkage between administrative management
and retirees, and that SCARE representatives did not take his advice to have retiree health
benefits tied to current bargaining employees. Allen also testified that the negotiations focused
on the eligibility, or "tiering" requirements for retiree health insurance, rather than on the
details of the coverage because the benefit had been around for such a long time.
(Emphasis added.)
5

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 SEIU bargaining units have been different from those paid by
administrative management and retirees. For example, a chart provided
by
the County shows
that in 1993, the contribution rate for employees in the SEIU bargaining unit was 8 percent
of
the health care premium, while the rate for administrative management and retirees was
10
percent. In 1994, the contribution rate for bargaining unit employees was still 8 percent,
while the rate for administrative management and retirees was
11
percent. In 1997 and 1998,
the contribution rate for bargaining unit employees exceeded that
of
administrative
management and retirees. In only seven out
of
the fifteen years between 1992 and 2007 have
retirees and administrative management employees paid the same percentage amount for health
insurance premiums as SEIU bargaining unit employees.4
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. 	Allen
attended those meetings regularly on behalf of SEIU. 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 testified that
6
TThe chart submitted by the County also indicates that, even in those years where the
percentage amounts were the same for retirees and SEIU bargaining unit employees, the actual
amounts paid per year were different in several of those years.
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. Allen
attended those meetings regularly on behalf of SEIU. 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 testified that
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 SEIU bargaining units have been different from those paid by
administrative management and retirees. For example, a chart provided by the County shows
that in 1993, the contribution rate for employees in the SEIU bargaining unit was 8 percent of
the health care premium, while the rate for administrative management and retirees was
10 percent. In 1994, the contribution rate for bargaining unit employees was still 8 percent,
while the rate for administrative management and retirees was 1 1 percent. In 1997 and 1998,
the contribution rate for bargaining unit employees exceeded that of administrative
management and retirees. In only seven out of the fifteen years between 1992 and 2007 have
retirees and administrative management employees paid the same percentage amount for health
insurance premiums as SEIU bargaining unit employees.*
he chart submitted by the County also indicates that, even in those years where the
percentage amounts were the same for retirees and SEIU bargaining unit employees, the actual
amounts paid per year were different in several of those years.

the issue
of
the linkage between retirees and administrative management came up frequently at
JLMBC meetings and that SCARE representatives would always make a point that the retirees
were tied to administrative management
so
the County not make any changes for them.
During the course
of
two or three JLMBC meetings in 2003, the County discussed
eliminating its pharmacy benefits for retirees and implementing the Medicare Part D pharmacy
plan instead. However, the County did not make the change after the retirees emphasized that
they were tied to administrative management, and
if
the County were to make any changes to
the pharmacy benefit it would have to make the same change for administrative management
because the retirees' benefits were tied to administrative management. At one point, Allen
spoke up and said something to the effect of, "see, you should have let SEIU represent your
interests, you know, instead
of
being tied to administrative management."
The minutes
of
the JLMBC meetings also reflect discussions about the link between
retirees and administrative management for health care benefits. The minutes
of
the March 4,
2004 meeting state that, after 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, the agreement made between SCARE and the County in 1985 ties
to make the same	retirees to administrative management costs, and that retirees are required
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
7
The minutes of the JLMBC meetings also reflect discussions about the link between
retirees and administrative management for health care benefits. The minutes of the March 4,
2004 meeting state that, after 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, the agreement made between SCARE and the County in 1985 ties
o make the same	r 	t	etirees to administrative management costs, and that retirees are required
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
the issue of the linkage between retirees and administrative management came up frequently at
JLMBC meetings and that SCARE representatives would always make a point that the retirees
were tied to administrative management so the County not make any changes for them.
During the course of two or three JLMBC meetings in 2003, the County discussed
eliminating its pharmacy benefits for retirees and implementing the Medicare Part D pharmacy
plan instead. However, the County did not make the change after the retirees emphasized that
they were tied to administrative management, and if the County were to make any changes to
the pharmacy benefit it would have to make the same change for administrative management
because the retirees' benefits were tied to administrative management. At one point, Allen
spoke up and said something to the effect of, "see, you should have let SEIU represent your
interests, you know, instead of being tied to administrative management."
7

included in the open enrollment booklets distributed to employees and retirees and made
available at the JLMBC meetings.
Allen and other SEIU representatives were present at both of these meetings and others,
but Allen stated that he did not recall the discussions of a linkage between retirees and
administrative management. He did not, however, deny that such discussions occurred.
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 DETERMINES HOW MUCH I PAY FOR HEALTH
INSURANCE?
Retirees have traditionally been linked to county management
concerning insurance contributions. Retirees pay a monthly
contribution equivalent to management's bi-weekly contribution.
Currently retiree's [sic] pay 15% of the total premium cost.
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 SEIU 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 SEIU bargaining
8
included in the open enrollment booklets distributed to employees and retirees and made
available at the JLMBC meetings.
Allen and other SEIU representatives were present at both of these meetings and others,
but Allen stated that he did not recall the discussions of a linkage between retirees and
administrative management. He did not, however, deny that such discussions occurred.
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:
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 SEIU 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 SEIU bargaining
WHO DETERMINES HOW MUCH I PAY FOR HEALTH
INSURANCE?
Retirees have traditionally been linked to county management
concerning insurance contributions. Retirees pay a monthly
contribution equivalent to management's bi-weekly contribution.
Currently retiree's [sic] pay 15% of the total premium cost.
8

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
SEIU' s representatives.
The County has never maintained records identifying retirees by bargaining unit or
former employee classification. SCERA also does not have the ability to track individual
retirees by bargaining unit and has never done so.
April 10, 2007 Resolution
Prior to 2007, the County paid 84 percent
of
the total premium for any medical plan for
unrepresented management and retirees. On April 10, 2007, the County's Board
of
Supervisors adopted a resolution implementing changes to the health plan design and
contribution methodology for unrepresented management employees and retirees, effective
July
1,
2008. Under this plan, known as the "85-Y" 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'S EXCEPTIONS
The County advances four principal arguments. First, the County contends that the
charge is time-barred because SEIU 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, the County asserts that the MOU language does not link
retiree health benefits to current unit employees and that, therefore, the County did not engage
an unlawful unilateral change in an established policy or past practice. Third, the County
the scope of representation.	contends that retiree health insurance benefits are not within
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.
9
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 SEIU's representatives.
April 10, 2007 Resolution
Prior to 2007, the County paid 84 percent of the total premium for any medical plan for
unrepresented management and retirees. On April 10, 2007, the County's Board of
Supervisors adopted a resolution implementing changes to the health plan design and
contribution methodology for unrepresented management employees and retirees, effective
July 1, 2008. Under this plan, known as the "85-Y" 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 advances four principal arguments. First, the County contends that the
charge is time-barred because SEIU 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, the County asserts that the MOU language does not link
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.
The County has never maintained records identifying retirees by bargaining unit or
ormer employee classification. SCERA also does not have the ability to track individual	f
retirees by bargaining unit and has never done so.
THE COUNTY'S EXCEPTIONS
9

10
DISCUSSION
Substantially the same issues raised in this case were presented to and decided by the
Board in County a/Sonoma (2011) PERB Decision No. 2173-M (Sonoma County I.) In that
case, filed by a different labor organization against the County over identical contract language
and the same April 10, 2007 resolution of the County Board of Supervisors, PERB determined
that: 	(1) the charge was barred by the six-month statute of limitations because the alleged
unilateral change had been in effect for many years before the filing of the charge; and (2) even
if the charge was timely filed, the evidence failed to establish a unilateral change in an
established past practice. Thus, the Board reversed the ALJ decision finding an unlawful
unilateral change. Because of the substantial factual and legal similarities present in this case
and Sonoma County I, we apply the same analysis.
Charge and Complaint
The charge in this case alleges, in relevant part:
On or about April I 0, 2007, the Board of Supervisors of
the County, the chief managerial representatives of the
County, adopted a Resolution, on information and belief,
numbered 07-0269 which, among other things, purported to
change the amount of the County's contribution for retired
employees' health plan premiums from the amount the County
contributed for an active single employee in the same amount and
on the same basis, or in the case of employees with dependents,
in the same amount, and on the same basis as it contributed for an
active employee with one dependent, to a maximum of 85% of
the total premium of the lowest cost medical plan offered for each
level of coverage - i.e., employee only, employee plus one
dependent, etc.
The complaint issued by the General Counsel alleges, in relevant part:
3. 	Before April 10, 2007, Respondent's policy with respect
to contributions for health care benefits for eligible retirees and
their eligible dependents was to pay the same premium costs as
DISCUSSION
Substantially the same issues raised in this case were presented to and decided by the
Board in County of Sonoma (2011) PERB Decision No. 2173-M (Sonoma County I.) In that
case, filed by a different labor organization against the County over identical contract language
and the same April 10, 2007 resolution of the County Board of Supervisors, PERB determined
that: (1) the charge was barred by the six-month statute of limitations because the alleged
unilateral change had been in effect for many years before the filing of the charge; and (2) even
if the charge was timely filed, the evidence failed to establish a unilateral change in an
established past practice. Thus, the Board reversed the ALJ decision finding an unlawful
unilateral change. Because of the substantial factual and legal similarities present in this case
and Sonoma County I, we apply the same analysis.
Charge and Complaint
The charge in this case alleges, in relevant part:
On or about April 10, 2007, the Board of Supervisors of
the County, the chief managerial representatives of the
County, adopted a Resolution, on information and belief,
numbered 07-0269 which, among other things, purported to
change the amount of the County's contribution for retired
employees' health plan premiums from the amount the County
contributed for an active single employee in the same amount and
on the same basis, or in the case of employees with dependents,
in the same amount, and on the same basis as it contributed for an
active employee with one dependent, to a maximum of 85% of
the total premium of the lowest cost medical plan offered for each
level of coverage - i.e., employee only, employee plus one
dependent, etc.
The complaint issued by the General Counsel alleges, in relevant part:
3. 	Before April 10, 2007, Respondent's policy with respect
to contributions for health care benefits for eligible retirees and
their eligible dependents was to pay the same premium costs as
10

are required for current employees pursuant to Section
15[
5l
of
the
parties' Memorandum
of
Understanding.
5.l6l 	On or about April
10,
2007, Respondent changed this
policy by adopting Resolution No. 07-0267, which limits
Respondent's contributions for health care benefits for eligible
retirees and their eligible dependents
to
a maximum
of
85
percent
of
the lowest cost medical plan offered for each level
of
health
care coverage for eligible retirees and eligible dependents,
regardless
of
which health care plan they are actually covered
under.
In Sonoma County
I,
the original complaint contained identical language to the
allegations
of
the complaint in this case. At the hearing in that case, however, the complaint
was amended to clarify the allegations to read:
'Before April 10, 2007, 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.'
We do not find this pleading difference to have a material effect on the issues in this
case. 	In both cases, the issue before PERB was whether the County unilaterally changed a past
practice or policy
of
paying the same health care premium costs for retirees as it did for current
bargaining unit employees to a cap
of
85 percent
of
the lowest cost plan. As discussed in
further detail below, both cases involved identical contract language that the Board in Sonoma
County I found to be ambiguous. In both cases, the evidence in the record showed that the
actual practice of the County over many years was to pay exactly the same percentage for
5 The reference to Section 15 was corrected at the hearing to Section 12.
6 The complaint was amended at the hearing to eliminate paragraph 4, which was a
duplicate of paragraph 3.
11
5.) On or about April 10, 2007, Respondent changed this
policy by adopting Resolution No. 07-0267, which limits
Respondent's contributions for health care benefits for eligible
retirees and their eligible dependents to a maximum of 85 percent
of the lowest cost medical plan offered for each level of health
care coverage for eligible retirees and eligible dependents,
regardless of which health care plan they are actually covered
under.
are required for current employees pursuant to Section 1513 of the
parties' Memorandum of Understanding
In Sonoma County I, the original complaint contained identical language to the
allegations of the complaint in this case. At the hearing in that case, however, the complaint
was amended to clarify the allegations to read:
We do not find this pleading difference to have a material effect on the issues in this
case. In both cases, the issue before PERB was whether the County unilaterally changed a past
practice or policy of paying the same health care premium costs for retirees as it did for current
bargaining unit employees to a cap of 85 percent of the lowest cost plan. As discussed in
further detail below, both cases involved identical contract language that the Board in Sonoma
County I found to be ambiguous. In both cases, the evidence in the record showed that the
actual practice of the County over many years was to pay exactly the same percentage for
The reference to Section 15 was corrected at the hearing to Section 12.
The complaint was amended at the hearing to eliminate paragraph 4, which was a
duplicate of paragraph 3.
'Before April 10, 2007, 2007, Respondent's policy concerning
health insurance contributions for current and future SCLEA
etirees was directly tied to the contributions made for active	r
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.
11

retirees as it did for unrepresented management and that it paid a different amount for current
bargaining unit employees. Thus, the Board in Sonoma County I concluded that the evidence
failed to establish a past practice
of
paying the same costs for retirees as it did for current
unit employees.	bargaining
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).)7 A charging party
bears the burden
of
demonstrating that the charge is timely filed. 	(Tehachapi Unified School
District (1993) PERB Decision No. 1024; 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 implement a unilateral change in policy, provided that nothing subsequently evinces a
wavering
of
that intent. (The Regents
of
the University
of
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 District (2008) PERB Decision No. 1944-M.) Whiie an employer's official notice
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
7 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
retirees as it did for unrepresented management and that it paid a different amount for current
bargaining unit employees. Thus, the Board in Sonoma County I concluded that the evidence
failed to establish a past practice of paying the same costs for retirees as it did for current
bargaining unit employees.
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.)
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).)' A charging party
bears the burden of demonstrating that the charge is timely filed. (Tehachapi Unified School
District (1993) PERB Decision No. 1024; 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 implement a unilateral change in policy, provided that nothing subsequently evinces a
wavering of that intent. (The Regents of the University of 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 District (2008) PERB Decision No. 1944-M.) While an employer's official notice
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
12

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 and Grant Joint Union High School District (1982) PERB Decision
No. 196 (Grant).)
As in Sonoma County
I,
the complaint in this case alleges that the County's April 2007
resolution changed the County's policy on retiree health insurance contributions from a prior
policy
of
paying the same premium costs on behalf
of
retires as it paid for current 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 existing practice linking
management, but only changed the contribution	retiree health care benefits to administrative
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.
13
The evidence established that the County had a practice for over 20 years
of
linking
retiree health insurance benefits to benefits received by administrative management. In his
capacity as SEIU' s representative, Allen regularly attended JLMBC meetings where the
linkage was discussed, most significantly the March 4, 2004, meeting for which the minutes
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
As in Sonoma County I, the complaint in this case alleges that the County's April 2007
resolution changed the County's policy on retiree health insurance contributions from a prior
policy of paying the same premium costs on behalf of retires as it paid for current 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 existing practice linking
etiree health care benefits to administrative management, but only changed the contribution	r
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.
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 and Grant Joint Union High School District (1982) PERB Decision
No. 196 (Grant).)
The evidence established that the County had a practice for over 20 years of linking
retiree health insurance benefits to benefits received by administrative management. In his
capacity as SEIU's representative, Allen regularly attended JLMBC meetings where the
linkage was discussed, most significantly the March 4, 2004, meeting for which the minutes
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
13

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. Indeed, Allen even commented that the
retirees should have let SEIU represent their interests instead
of
being tied to administrative
management. The agenda and minutes
of
those meetings were provided to SEIU and other
employee organizations, whether or not they attended.
Given Allen's active participation in the JLMBC where the linkage between
administrative management and retirees was clearly and openly discussed on many occasions,
and given SEIU's status as the exclusive representative
of
bargaining unit employees and
future retirees, we find it implausible that SEIU 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 SEIU 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
October 10, 2007 was not timely 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
14
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. Indeed, Allen even commented that the
retirees should have let SEIU represent their interests instead of being tied to administrative
management. The agenda and minutes of those meetings were provided to SEIU and other
employee organizations, whether or not they attended.
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
Given Allen's active participation in the JLMBC where the linkage between
administrative management and retirees was clearly and openly discussed on many occasions,
and given SEIU's status as the exclusive representative of bargaining unit employees and
future retirees, we find it implausible that SEIU 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 SEIU 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
October 10, 2007 was not timely filed.
Unilateral Change
14

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
of
Stockton (1984)
161
Cal.App.3d 813;
Grant.)
Written Agreement
SEIU asserts that the term "active employee," as used in Article
12
of
the MOU, means
current bargaining unit employee. The County, on the other hand, asserts that Section 12
codified the parties' existing practice
of
linking retiree health benefits to unrepresented
management. As in Sonoma County
I,
we conclude that the identical 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
15
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 of Stockton (1984) 161 Cal.App.3d 813;
Grant.)
SEIU asserts that the term "active employee," as used in Article 12 of the MOU, means
current bargaining unit employee. The County, on the other hand, asserts that Section 12
codified the parties' existing practice of linking retiree health benefits to unrepresented
management. As in Sonoma County I, we conclude that the identical 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
Written Agreement
15

of the contract itself to ascertain its meaning. (Civ. Code,§ 1638; City of Riverside (2009)
PERB Decision No. 2027-M; Marysville Joint Unified School District (1983) PERB Decision
No. 314 (Marysville).) "The whole of a contract is to be taken together, so as to give effect to
every part, ifreasonably 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) PERB
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 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.)
The operative language of Section 12 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 MOU
defines "employee" as "any person legally employed by the County and a member of the
bargaining unit represented by the Union," nothing on the face of the contract indicates that
"employee" as used 	Section 3.2 is synonymous with "active single employee" as used in
Section 12. Such a construction would appear to be inconsistent with Section 3.1, entitled
"Definitions Non-Application," which states: "None of the following definitions are intended
to apply in the administration of the County Employee's Retirement Law of 193 7 or to the
County's Civil Service Ordinance nor the Rules of the Civil Service Commission."
16
of the contract itself to ascertain its meaning. (Civ. Code, $ 1638; City of Riverside (2009)
PERB Decision No. 2027-M; Marysville Joint Unified School District (1983) PERB Decision
No. 314 (Marysville).) "The whole 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) PERB
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 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.)
The operative language of Section 12 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 MOU
defines "employee" as "any person legally employed by the County and a member of the
bargaining unit represented by the Union," 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 12. Such a construction would appear to be inconsistent with Section 3.1, entitled
"Definitions Non-Application," which states: "None of the following definitions are intended
to apply in the administration of the County Employee's Retirement Law of 1937 or to the
County's Civil Service Ordinance nor the Rules of the Civil Service Commission."
16

Adding to this ambiguity is the language in Section
12
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. Witnesses for both parties acknowledged
that the 1989 negotiations focused primarily on the County's "tiering" proposal that
established waiting periods before employees hired after July 1, 1990 would be eligible to
receive retiree hea1t4 care benefits. In interpreting Section 12, SEIU relies on language
of
the
"intent footnote" to the County's August 8, 1989 proposal, which states that the County will
pay whatever it pays "for active employee when retiree retires" and will treat r~tirees
"same
thereafter as it treats active employee contributions." Allen also testified, however, that
he
was
aware
of
statements from SCARE representatives indicating that retiree health benefits were
tied to administrative management, and that he even chided them for not taking his advice to
be linked to the bargaining unit employees. Thus, we do not consider the "intent footnote" on
the August 8, 1989 proposal to be dispositive on the issue
of
the meaning
of
the disputed
contract language.
17
Based upon our review
of
the MOU and the extrinsic evidence, we conclude that the
MOU does not establish a written agreement to pay the same amount
insurance benefits as it pays for current bargaining unit employees. Therefore, we consider
whether the County has breached an unwritten but established past practice.
Adding to this ambiguity is the language in Section 12 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. Witnesses for both parties acknowledged
that the 1989 negotiations focused primarily on the County's "tiering" proposal that
established waiting periods before employees hired after July 1, 1990 would be eligible to
eceive retiree health care benefits. In interpreting Section 12, SEIU relies on language of the	r
"intent footnote" to the County's August 8, 1989 proposal, which states that the County will
pay whatever it pays "for active employee when retiree retires" and will treat retirees "same
thereafter as it treats active employee contributions." Allen also testified, however, that he was
aware of statements from SCARE representatives indicating that retiree health benefits were
tied to administrative management, and that he even chided them for not taking his advice to
be linked to the bargaining unit employees. Thus, we do not consider the "intent footnote" on
the August 8, 1989 proposal to be dispositive on the issue of the meaning of the disputed
contract language.
Based upon our review of the MOU and the extrinsic evidence, we conclude that the
MOU does not establ	MOU does not establish a written agreement to pay the same amount
insurance benefits as it pays for current bargaining unit employees. Therefore, we consider
whether the County has breached an unwritten but established past practice.
17

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
(Hacienda La Puente Unified School	is "regular and consistent" or "historic and accepted."
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 III) cases, finding 20-year practice
of
providing retiree
dental and medical insurance to constitute a binding past practice.) The burden is on SEIU
to establish that the County breached an established past practice. (San Francisco Unified
School District (2009) PERB Decision No. 2057; City
of
Commerce (2008) PERB Decision
No. 1937-M.) To do so, SEID 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.)
18
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." As in Sonoma County I, while SEIU 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
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 Sheriff's 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 dec. 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 D); 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 III) cases, finding 20-year practice of providing retiree
dental and medical insurance to constitute a binding past practice.) The burden is on SEIU
to establish that the County breached an established past practice. (San Francisco Unified
School District (2009) PERB Decision No. 2057; City of Commerce (2008) PERB Decision
No. 1937-M.) To do so, SEIU 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.)
Past Practice
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." As in Sonoma County I, while SEIU 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
18

County on behalf
of
retirees since at least 1990 exactly mirrored those paid on behalf
of
unrepresented 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 Allen and other SEIU representatives were present and whose agenda and
minutes were provided to SEIU, 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 SEIU established the existence
of
a binding past
practice
of
linking retiree health benefits to the benefits received by bargaining unit employees.
Accordingly, SEIU has not met its burden
of
proving a unilateral change in an established past
practice. 8 Therefore, a prima facie case
of
unlawful unilateral change has not been established. 9
BBecause we find that SEIU 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
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
I;
County
of
Sacramento
II;
County
of
Sacramento III; 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.
9 The County argues that the remedy imposed by the ALJ inappropriately extends to
the	retirees who were not employees at the time the charge was filed. 	Because we dismiss
complaint, we need not reach this issue. However, were we to do so, we would reject the
County's argument. (County
of
Sacramento III; Holtville Unified School District (1982) PERB
Decision No. 250; Corning Union High School District (1984) PERB Decision No. 399.)
19
County on behalf of retirees since at least 1990 exactly mirrored those paid on behalf of
unrepresented 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 Allen and other SEIU representatives were present and whose agenda and
minutes were provided to SEIU, 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 SEIU established the existence of a binding past
practice of linking retiree health benefits to the benefits received by bargaining unit employees.
Accordingly, SEIU has not met its burden of proving a unilateral change in an established past
practice. Therefore, a prima facie case of unlawful unilateral change has not been established."
" 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 III; Holtville Unified School District (1982) PERB
Decision No. 250; Corning Union High School District (1984) PERB Decision No. 399.)
ecause we find that SEIU 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
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 I; County of Sacramento II; County of Sacramento III; 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
ssue of whether such amendment or repeal may be bargained. Requiring the County to	i
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.
19

CONCLUSION
Having thoroughly reviewed the record in this case, we respectfully disagree with our
dissenting colleague that the pleadings or facts
of
this case warrant a different decision than that
reached by the Board in Sonoma County
I.	
Instead, we find this case to be virtually identical
both factually and legally. We therefore dismiss the complaint in this case.
ORDER
The complaint and underlying unfair practice charge in Case No. SF-CE-509-M are
hereby DISMISSED.
Member McKeag joined in this Decision.
Member Huguenin' s dissent begins on page 21.
20
The complaint and underlying unfair practice charge in Case No. SF-CE-509-M are
hereby DISMISSED.
Member Mckeag joined in this Decision.
Member Huguenin's dissent begins on page 21.
CONCLUSION
Having thoroughly reviewed the record in this case, we respectfully disagree with our
dissenting colleague that the pleadings or facts of this case warrant a different decision than that
reached by the Board in Sonoma County I. Instead, we find this case to be virtually identical
both factually and legally. We therefore dismiss the complaint in this case.
ORDER
20

HUGUENIN, Member, dissenting: 	One year ago a Board panel decided County
of
Sonoma (2011) PERB Decision No. 2173-M. That decision, which the majority here labels
"Sonoma County I," held that an unfair practice charge, brought there by a law enforcement
employees association, was not timely filed, and, alternatively, that a unilateral change was not
case, the majority reaches identical conclusions. I do not.	established. In this
I find that the charge here was timely filed. The conduct alleged here to constitute a
unilateral change occurred in April 2007 six months to the day prior to the filing
of
the charge,
not decades ago as the majority here finds.
I find that the County
of
Sonoma (County) has not proved by a preponderance
of
evidence that Service Employees International Union, Local 1021 (SEIU) agreed to, and
incorporated into SEIU's MOUs with the County, a practice permitting the County to reduce at
will the County's contribution to retiree and future retiree health care benefits from the SEIU
bargaining unit, so long as the same reduced benefits were provided to the County's
unrepresented management employees.
I conclude therefore that in April 2007, without negotiating with SEIU, the County
reduced its retiree health care benefits contribution to a fixed percentage
of
the lowest cost plan,
instead
of
continuing to pay a fixed percentage
of
that plan selected by the individual retiree, and
by so doing violated the Meyers-Milias-Brown Act (MMBA).
Thus, I distinguish this case from Sonoma County
I,
and would affirm the proposed
decision.
21
I conclude therefore that in April 2007, without negotiating with SEIU, the County
reduced its retiree health care benefits contribution to a fixed percentage of the lowest cost plan,
instead of continuing to pay a fixed percentage of that plan selected by the individual retiree, and
by so doing violated the Meyers-Milias-Brown Act (MMBA).
Thus, I distinguish this case from Sonoma County I, and would affirm the proposed
decision.
HUGUENIN, Member, dissenting: One year ago a Board panel decided County of
Sonoma (2011) PERB Decision No. 2173-M. That decision, which the majority here labels
"Sonoma County I," held that an unfair practice charge, brought there by a law enforcement
employees association, was not timely filed, and, alternatively, that a unilateral change was not
established. In this case, the majority reaches identical conclusions. I do not.
I find that the charge here was timely filed. The conduct alleged here to constitute a
unilateral change occurred in April 2007 six months to the day prior to the filing of the charge,
not decades ago as the majority here finds.
I find that the County of Sonoma (County) has not proved by a preponderance of
evidence that Service Employees International Union, Local 1021 (SEIU) agreed to, and
incorporated into SEIU's MOUs with the County, a practice permitting the County to reduce at
will the County's contribution to retiree and future retiree health care benefits from the SEIU
bargaining unit, so long as the same reduced benefits were provided to the County's
unrepresented management employees.
21