Orange Unified Education Association and California Teachers Association (Rossman) (PERB 1533E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JOHN ROSSMANN,
Charging Party,
V.
ORANGE UNIFIED EDUCATION
ASSOCIATION & CALIFORNIA TEACHERS
ASSOCIATION,
Respondent.
Case No. LA-CO-1123-E
PERB Decision No. 	1533
June
	23,
	2003
Appearance: John Rossmann, on his own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (Board)
on appeal by John Rossmann (Rossmann)
of
a Board agent's dismissal (attached)
of
his unfair
practice charge. Rossmann alleged that the Orange Unified Education Association (OUEA)
and the California Teachers Association (CTA) violated the Educational Employment
Relations Act (EERA)1 by breaching their duty
of
fair representation. Specifically, Rossmann
alleged that OUEA and CTA violated their duty
of
fair representation by negotiating changes
to retirees' health benefits.
The Board has reviewed the entire record in this matter, including the original unfair
practice charge, the Board agent's warning and dismissal letters and Rossmann' s appeal. 	The
1 EERA is codified at Government Code section 3540 et seq.

Board finds the warning and dismissal letters to be free from prejudicial error and adopts them
as the decision
of
the Board itself.
ORDER
The unfair practice charge in Case No. LA-CO-1123-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Neima joined in this Decision.
2

. .r.
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
San .Francisco'Regional Office
1330 Broadway. Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1023
Fax: (5 I 0) 622-1027
January 31, 2003
John Rossmann
14661 Berkshire Place
Tustin, CA 92780
GRAY DAVIS, Governor
Re: 	John Rossmann v. Orange Unified Education Association & California Teachers
Association
Unfair Practice Charge No. LA-CO-1123-E
DISMISSAL LETTER
Dear Mr. Rossmann:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 28, 2002. You allege that the Orange Unified Education
Association & California Teachers Association violated the Educational Employment
Relations Act (EERA) 1 by negotiating changes to retirees' health benefits.
I indicated to you in my attached letter dated January 13, 2003, 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 22, 2003, the charge would be
dismissed. On January 21, 2003, I received your first amended charge.
The Warning Letter indicated that the original charge failed to state a prima facie violation and
explained that employers and exclusive representatives were permitted to negotiate regarding
permissive subjects of bargaining. The Warning Letter further explained that only the
exclusive representative owes the employees a duty of fair representation.
The first amended charge's allegations are summarized as follows: (a) CTA is the acting
exclusive representative of the certificated bargaining unit as OUEA "converted" its affiliation
with CTA to "Option 1" and is under the direction of a CT A Executive Director; (b) the
Respondent submitted false statements to PERB in response to the Charging Party's request for
injunctive relief; (c) the Legislature intended to limit the scope ofrepresentation and PERB
cannot legally change the Legislature's intent; (d) the Warning Letter's statement that "Even if
the retirees' benefits is an illegal subject of bargaining, the charge fails to demonstrate the
parties made substantial changes to the retirees benefits in the 2002 Agreement" is equivalent
to saying, "its ok to break the law, so long as you don't break it too severely;" (e) PERB
usurped its authority because the Warning Letter states that "The Board has determined that a
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CO-1123-E
January 31, 2003,
Page 2
union may violate its duty
of
fair representation by agreeing in negotiations
to
contractual
language that violates certain statutory guarantees;" and (f) OUEA acted in an arbitrary,
discriminatory or bad faith manner because the 2002 Agreement fails to fairly and equally
represent the interests
of
both active employees and retirees.
The charge fails to state a prima facie violation for the reasons stated below.
Although OUEA may accept direction from an Executive Director hired by CTA, the charge
does not demonstrate CTA is the exclusive representative
of
the ce1iificated bargaining unit.
OUEA may affiliate with other organizations like CTA, but CTA is not the exclusive
representative. (California Teachers Association (Torres) (2000) PERB Decision No. 1386.)
Thus, CTA does not owe the employees a duty
of
a fair representation and the charge fails to
demonstrate CTA violated the Act.
The Charging Party alleges OUEA violated its duty
of
fair representation by negotiating retiree
benefits. However, as stated in the Warning letter, parties do not violate EERA section 3543.2
by negotiating permissive subjects
of
bargaining. (Chula Vista City School District (1990)
PERB Decision No. 834; Poway Unified School District (1988) PERB Decision No. 680.) The
Charging Party alleges PERB is undermining the Legislature's intent by failing to issue a
complaint. These decisions do not undermine the limitations on the scope
of
representation
stated in EERA section 3543.2 as either party may refuse to bargain such permissive subjects
and the employer cannot insist to impasse over such subjects.
It appears that the Charging Party misinterpreted the Warning Letter's statement that "Even
if
retirees' benefits is an illegal subject
of
bargaining the charge fails to demonstrate the parties
made substantial changes to the retiree benefits in the 2002 Agreement," as it was not intended
to indicate that it is "ok to break the law." Following that statement, the Warning Letter
explained that the charge failed to demonstrate whether the alleged change in HMO pians
reduced the plan participants' benefits and whether the changes alleged occurred as a result
of
the 2002 Agreement. It is incumbent upon the Charging Party to allege the "who, what, when,
where, and how"
of
an unfair practice. (United Teachers-Los Angeles (Ragsdale) (1992)
PERB Decision 944.) Mere legal conclusions are insufficient. (See State
of
California
(Department
of
Food and Agriculture (1994) PERB Decision No. l 071-S.)
The Warning Letter states, "the Board has determined that a union may violate its duty
of
fair
representation by agreeing in negotiations to contractual language that violates certain statutory
guarantees." With regard to this statement, the Charging Party argues that such a
determination places PERB above the Legislature in determining what is law and what is not
and that PERB has usurped the prerogatives of the Legislature. Again, it appears the Charging
Party has misinterpreted the Warning Letter. The statement in question does not, by the use of
the word "may," indicate an exclusive representative has permission to violate its duty
of
fair
representation by agreeing to contractual language that violates statutory guarantees. The
statement is instead meant to indicate that if a union agrees to contractual language that
violates certain statutory guarantees such conduct could be deemed a violation of its duty of
fair representation. The Warning Letter cites Oxnard Educators Association (Gorcey et al.)
(1988) PERB Decision No. 664, in support of this rule. In that decision the Board reversed a
board agent's dismissal of a duty of fair representation allegation and thereby indicated that the

LA-CO-1123-E
January 31, 2003
Page 3
charging party would be afforded an opportunity to demonstrate at a hearing that the union's
conduct violated the act. (Oxnard Educators Association (Gorcey et al.), supra.)
At this level of the investigation the Charging Party's facts are taken as true. (Mark West
Union School District (1993) PERB Decision No. 1011.) Thus, whether the statements made
to PERB by the Respondent in response to the Charging Party's request for injunctive relief
were untrue is not determinative of the charge. Despite the Charging Party's allegations that
the Association fails to fairly and equally represent the members' interests; the charge fails to
demonstrate that OUEA acted in an arbitrary, discriminatory or bad faith manner. As
discussed previously the charge does not present facts demonstrating that the negotiation of
retiree benefits violates the EERA. Moreover, the Association is not required or expected to
satisfy all members of the bargaining unit it represents, and the duty of fair representation does
not mean that the Association is barred from making contracts which may have unfavorable
effects on some of the members. (Corona Norco Teachers Association (2000) PERB Decision
No. 1385.) Thus, for the above-stated reasons and those stated in the Warning Letter, the
charge is dismissed.
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 or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than 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.)
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CO-1123-E
January 31, 200J
Page 4
The Board's address is: 	Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
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
Tam
Regional Attorney
Attachment
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____
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cc: Robert Lindquist

STATE OF CALIFORNIA
	GRAY
DJ\VIS, Governor
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PUBLIC ;EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 946 l 2-25 l 4
Telephone:
(5
l 0) 622-1023
Fax:
(5
l 0) 622-1027
January 13, 2002
John Rossmann
14661 Berkshire Place
Tustin, CA 92780
Re: 	John Rossmann
v.
Orange Unified Education Association & California Teachers
Association
Unfair Practice Charge No. LA-CO-1123-E
WARNING LETTER
Dear Mr. Rossmann:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 2, 2003. 	You allege that the Orange Unified Education
Association & California Teachers Association violated the Educational Employment
Relations Act (EERA) 1 by negotiating changes to retirees' health benefits. 	My investigation
revealed the following information.
The Orange Unified School District employs Rossmann as a certificated employee exclusively
represented by OUEA. In 1997 OUEA negotiated a collective bargaining agreement that
included provisions regarding retirees' health benefits. Rossmann objected to the inclusion
of
these proposals and voted against ratification
of
the agreement. 	The bargaining unit later
elected Rossmann President
of
OUEA and during his tenure he organized the retired
employees and financed a lawsuit by the retirees against the District for the changes in the
1997 agreement. 2 The retirees' lawsuit is still pending.
	In
2000, Rossmann stepped down as
OUEA President and OUEA again began bargaining with the District regarding health benefits.
On December 11, 2002, ODEA and the District signed a Tentative Agreement for a new
collective bargaining agreement. On December 19, 2002, the parties ratified the Tentative
Agreement and thereby created a collective bargaining agreement effective by its terms July
1,
2002, to June 30, 2005. The CBA included changes to the parties' health and welfare benefits
article. Article 2.3 included, inter alia, the following provisions:
2.311 	Within the cost maximums set forth below, the District
shall pay the actual cost of providing health and welfare benefits
(medical, dental, prescription, vision, and for actives only, life
insurance) through an HMO plan for all active employees and
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 See David Reger et al. v. Orange Unified School District, Case No. 81783 7, in Orange
County Superior Court.

LA-C0-1123-E
Jam.{Ary
1
o:
2003
Page 2
(
•
,I',
their eligible dependents, and through an HMO plan or Medicare
Risk HMO for all eligible retirees and their dependents.
Eligibility shall be set for the in the current agreement. All
retired plan participants age 65 and over may be placed in a
Medicare Risk HMO at the discretion
of
the District. [emphasis
added.]
The District shall pay the actual cost
of
the health and welfare
benefits up to the following specified maximum annual
contributions, subject to the dependent contributions provided in
Section 2.139. The District shall also make the same
contributions for employees who elect to participate in the
District offered PPO program. Active employees/retirees shall be
assessed the difference between the agreed upon District
maximum contributions as listed below and the actual PPO plan
cost, which is commonly referred to as the employee/retiree buy-
up cost for the PPO programs. 	Assessments shall be made
through payroll deductions for active employees and monthly
contributions paid by retirees. 	It is recognized that the District's
payroll department will need to adjust employee payroll
deductions in light
of
the increase in the District contribution
amount. [emphasis added.]
2.313 	District Annual Contributions for Eligible Retirees
effective October
1,
2002
$3,082 for single coverage for eligible retirees
$6,433 for single plus one dependent coverage for eligible
retirees
$9,206 for family coverage for eligible retirees
2.316 	All Medicare eligible retirees and their dependents shall
be enrolled in a Medicare Risk HMO plan offered by the District
or eligible retirees and their dependents have the option
of
enrolling in the District provided PPO plan subject to the
provisions
of
this article, including sections 2.311, 2.313, and
2.319.
2.320 	All eligible retirees age 65 and over shall enroll in
Medicare Parts A and B. The District shall pay one-half of the
Medicare Part A premium for up to ten years for any eligible
retiree age 65 and over who does not qualify for Medicare or the
STRS pickup for Medicare Part A.

LA-CO-1123-E
Jan~ary 10, 2003
Page 3
(
The Agreement indicates that on September 3, 2002, the ODEA-District Health Benefits
Insurance Committee approved these modifications and that the changes were effective
October 1, 2002.
The above-stated information fails to state a prima facie violation for the reasons that follow.
The theory of this unfair practice charge is that OUEA and CTA violated the EERA's scope of
representation provision by negotiating changes to retirees' benefits and thereby violated the
associations' duty of fair representation. The Charging Party contends that as retirees are not
employees as defined by the Act, OUEA and CTA may not negotiate changes to the retirees'
benefits.3
The duty of fair representation is owed from the exclusive representative to the bargaining unit
employees it represents. The California Teachers Association is a statewide organization and
not the exclusive representative. As such, it does not owe a duty of fair representation to unit
members. (California Teachers Association (Torres) (2000) PERB Decision No. 1386.) 	Thus,
the charge fails to demonstrate a prima facie duty of fair representation violation with regard to
CT A and this allegation must be dismissed. The allegation that OUEA violated its duty of fair
representation is addressed below.
In order to state a prima facie violation of the duty of fair representation, Charging Party must
show that the Respondent's conduct was arbitrary, discriminatory or in bad faith. 	(Rocklin
Teachers 	Professional Association (Romero) (1980) PERB Decision No. 124.) The Board
has determined that a union may violate its duty of fair representation by agreeing in
negotiations to contractual language that violates certain statutory guarantees. 	(Oxnard
Educators Association (Gorcey et al.) (1988) PERB Decision No. 664.) In Oxnard Educators,
the Board concluded that a prima facie case of a violation is set forth when a charging party
alleges that 1) a union was advised that a contract proposal violated a statute, 2) the union
acknowledged the concerns, 3) the union provides no rationale for negotiating a provision in
conflict with the statute, 4) a request to correct the conflict is made to the union and refused,
and 5) the union "knowingly bargained away Charging Parties rights."
Rossmann alleges that OUEA's contract with the District violated EERA section 3543.2 which
sets forth the scope of representation. By negotiating an agreement in violation of this
provision, Rossmann argues OUEA violated its duty of fair representation. EERA section
3543.2 provides, in pertinent part:
(a) The scope of representation shall be limited to matters
relating to wages, hours of employment, and other terms and
conditions of employment. 	"Terms and conditions of
employment" mean health and welfare benefits as defined by
The Charging Party correctly notes that retirees are not employees as defined under
the Act. 	(San Leandro Unified School District (1983) PERB Decision No. 450.)

LA-CO-1123-E
January 10, 2003
Page 4
. "·
Section 53200, leave, transfer and reassignment policies, safety
conditions of employment, class size, procedures to be used for
the evaluation of employees, organizational security pursuant to
Section 3546, procedures for processing grievances pursuant to
Sections 3548.5, 3548.6, 3548.7, and 3548.8, the layoff of
probationary certificated school district employees, pursuant to
Section 44959.5 of the Education Code, and alternative
compensation or benefits for employees adversely affected by
pension limitations pursuant to Section 22316 of the Education
Code, to the extent deemed reasonable and without violating the
intent and purposes of Section 415 of the Internal Revenue Code .
. . . All matters not specifically enumerated are reserved to the
public school employer and may not be a subject of meeting and
negotiating, provided that nothing herein may be construed to
limit the right of the public school employer to consult with any
employees or employee organization on any matter outside the
scope of representation.
EERA section 3543.2(a) does not specifically address retirement benefits, but in Temple City
Unified School District (1989) PERB Decision No. 782, the Board rejected the employer's
argument that retirement benefits were outside the scope of representation. The Board
explained that the future benefits of those currently employed were within the scope of
representation. (Temple City, supra; Jefferson School District (1980) PERB Decision No.
133.) 	Only retirement benefits for current retirees were deemed outside the scope of
representation. 	(Temple City, supra citing Allied Chemical and Alkali Workers v. Pittsburgh
Plate Glass Co. (1971) 404 U.S. 157 [78 LRRM 2974].)
In the instant charge, taking the Charging Party's facts as true, OUEA negotiated changes in
retirements benefits for active employees (future retirees) and current retirees when it
negotiated the 2002-2005 Agreement. Under Temple City, supra OUEA had the right to
negotiate retirement benefits for current employees as that subject is within the scope of
representation or is a mandatory subject of bargaining. Although Temple City, supra indicates
retirement benefits for current retirees are nonmandatory subjects of bargaining, that
determination is not dispositive of whether OUEA violated the Act by negotiating about this
subject with the District.
Employers and unions may negotiate over a nonmandatory subject of bargaining as if it were a
mandatory subject of bargaining. (Chula Vista City School District (1990) PERB Decision No.
834; Poway Unified School District (1988) PERB Decision No. 680.) The employer may not,
however, insist to impasse over such permissive subjects. (Poway, supra.)
Here, OUEA and the District negotiated over a nonmandatory subject of bargaining which
PERB caselaw permits. (Chula Vista, supra.) The charge does not provide facts
demonstrating how OUEA's conduct violated the Act, or why the rule set forth in Chula Vista,
supra and Poway, supra should not be applied here. The charge fails to demonstrate that the

LA-C0-1123-E
Jan~ary 1
0'.
2003
Page 5
Respondent's conduct was arbitrary, discriminatory or in bad faith. 	Thus, this charge must be
dismissed.
Even
if
retirees' benefits is an illegal subject
of
bargaining the charge fails to demonstrate the
parties made substantial changes to the retiree benefits in the 2002 Agreement. Here the
Charging Party alleges the new Agreement requires retirees to change to different HMO plans.
However, it is unclear from the provided documents whether this change reduced the plan
participants' benefits. As noted earlier, the OUEA also negotiated changes in the health
benefits article in 1997, the charge does not establish what,
if
any, changes occurred as a result
of
the 2002 Agreement.
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
comer
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 22, 2002, I shall dismiss your charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
.,,,,.-----,
	,7
-	
/l
!uu/7(;Jl,~
Tammy Samsel
Regional Attorney