Temple City Unified School District (PERB 0814E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TEMPLE 	CITY EDUCATION ASSOCIATION,
CTA/NEA,
Charging 	Party,
V.
TEMPLE 	CITY 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-2886
PERB Decision No. 	814
June 13, 	1990
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Appearances: 	California Teachers Association by Charles 	R.
Gustafson, 	Attorney, 	for Temple City Education Association,
CTA/NEA; 	Wagner, 	Sisneros & Wagner by John J. 	Wagner, 	Attorney,
for 	Temple 	City 	Unified 	School 	District.
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Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(Board) 	on an appeal 	filed by the 	Temple City
Education Association, 	CTA/NEA 	(Association) 	of a Board agent's
dismissal 	of 	its 	unfair practice charge. 	The Association
contends 	that 	the 	Temple 	City 	Unified 	School 	District 	(District)
violated the Educational Employment Relations Act 	(EERA), 	section
3543.5(b), 	(c), 	and (e),1 by unilaterally omitting or eliminating
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5(b), 	(c), 	and (e) 	states:
It 	shall be unlawful 	for a public 	school
employer to:
(b) 	Deny to employee organizations 	rights
guaranteed to 	them by this 	chapter.
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unit members' 	rights 	to 	select how their 	fringe benefit
allocations would be 	spent. 	We have 	reviewed the 	entire 	record,
including the Association's 	appeal 	from 	the 	dismissal 	and 	the
District's 	response thereto, 	and reverse the dismissal of the
unfair practice 	charge 	for the reasons 	set 	forth below.
(c) 	Refuse or 	fail 	to meet 	and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
(e) 	Refuse to participate 	in good faith 	in
the 	impasse procedure 	set 	forth in Article 	9
(commencing with Section 3548).
FACTUAL 	BACKGROUND
The 	unfair practice 	charge 	contains 	the 	following 	factual
allegations. 	The Association is 	the 	exclusive representative of
a 	unit of 	the 	District's 	certificated 	employees. 	The Association
and the 	District were parties 	to 	a 	collective bargaining
agreement effective November 	1, 	1986 through June 30, 	1989.
Pursuant to a reopener provision in the agreement, 	in June 	1988
the parties 	commenced 	negotiations 	on 	several 	contract 	articles,
including Article XV which pertained 	to 	fringe 	benefits. 	The
negotiations 	resulted 	in an impasse declaration on August 	31,
1988. 	The parties 	subsequently participated 	in mediation and
factfinding, 	and a 	factfinding report was 	issued on February 	21,
1989.2
2The 	factfinding report 	is 	not 	contained 	in the 	record.
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	2

The 	parties 	met 	twice 	after 	receiving 	the 	factfinding 	report
and, 	on April 	20, 	1989, 	the District presented what it called a
"last, 	best and 	final offer," 	which 	included an increase 	in the
District's 	fringe 	benefit 	contribution 	from $3,000 	to 	3,500,
retroactive to October 	1, 	1988.3 On April 25, 	1989, 	the District
unilaterally 	implemented 	its 	last, 	best and 	final 	offer in a
revised Article XV which reads 	as 	follows:
ARTICLE 	XV
HEALTH 	AND WELFARE 	BENEFITS
1. 	The District agrees 	to contribute
$3 500.00 	to each unit member's health and
welfare benefits, 	effective October 1, 	1988.
2. 	The benefits 	available to unit members
shall 	be 	included 	in Appendix A, 	dated April
20, 	1989, of this Agreement.
Appendix A, 	herein referred to 	as 	the 	"benefit 	selection
sheet," 	dated April 	20, 	1989,4 contained the following language:
Listed below are 	the 	health 	and welfare
plans. 	The District will 	contribute 	$350.00
tenthly toward the plans 	listed below. 	Any
amount 	incurred 	beyond 	the 	District
contribution will 	be payroll 	deducted.
Please 	indicate 	the benefits 	you 	select by
checking 	the 	appropriate 	box 	and 	enter 	the
amount 	in the 	contribution column. 	Please
3There 	is 	nothing in the record to 	indicate that, 	in
bargaining proposals 	regarding fringe benefits, 	the parties
discussed 	changing 	the 	method 	by which 	the 	employer 	could
allocate 	expenditure 	of 	any 	increase 	in 	fringe benefits.
4For the record, 	it 	should be noted that the 	sheet 	is
actually 	titled 	"Temple 	City 	Unified 	School 	District 	Certified
Employees 	Benefit Selection 	1988-1989," 	and the April 	20, 	1989
date appears to have been added, 	in different type, 	later. 	It
appears 	the 	sheet 	is 	the 	same 	sheet used 	in the 	1988-89 	school
year, 	although there 	is 	nothing 	in the record that 	explicitly
states 	this 	to be the case.
w	3

check the box 	in the right hand margin 	if
there 	is 	a 	change 	from 	last year's 	coverage.
I 	authorize 	Temple 	City 	Unified 	School
District 	to deduct 	any payroll 	deductions
listed above 	from my 	salary warrant. 	If 	any
changes 	are made regarding the health and
welfare benefits 	from the previous year, 	I
understand 	that proper 	enrollment 	forms 	must
be 	obtained 	and 	returned 	to 	the 	Personnel
Office by September 12, 	1988.5
On May 	17, 	1989, 	the District 	sent the following memo to the
certificated unit 	members:
On April 	25, 	1989 the Temple City Unified
School 	District 	Board 	of 	Education took
action to 	increase 	each 	certificated unit
member's 	fringe benefit 	allocation by 	$500.
This 	action was 	retroactive to October 	1,
1988.
As 	a result of the Board's 	action, 	those unit
members who have had money deducted 	from
their paychecks will 	be 	reimbursed 	for
previous 	deductions 	for up to 	$50 per month.
Any dollars 	remaining 	after 	this 	adjustment
will be placed 	in the 	individual's 	flexible
spending 	account.
For all 	unit members 	who 	currently have 	a
flexible 	spending account, 	the District will
add an additional 	$50 per month to that
account, 	retroactive to October 1, 	1988.
On May 23, 	1989, 	unit member Mary Douglass 	(Douglass)
responded by memo which 	stated, 	in pertinent part, 	that:
5 Although 	the 	Board agent dismissed 	the 	case based on the
Association's 	failure to 	return the 	"proper enrollment 	forms,"
neither 	the Association nor 	the 	Board 	agent 	directly 	addressed
the 	factual question of how a form, 	dated April 20, 	1989, 	could
require employees 	to take any action prior to September 	12, 	1988,
with respect 	to 	funds 	not then available. 	Resolution of 	this
factual question, 	however, 	is not necessary to the disposition of
this 	case 	and 	is 	more appropriately reached after a hearing.
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5
4

. . . .
I 	do 	not want my 	$500 	in 	fringe benefits
recently 	granted by 	the 	Board 	of 	Education to
go 	into my 	flexible 	spending account.
When 	I 	signed up 	for my benefits 	in September
1988 	I 	requested that when and if a
settlement was 	reached which would 	increase
my benefits 	I wanted the 	surplus 	funds 	to go
into 	my 	new insurance policy that pays
benefits 	upon retirement.
. 	. 	. 	I feel that denial of my right to
choose where my benefit money 	should go 	is 	a
violation of our contract.
Other 	employees 	made 	similar requests 	regarding disposition
of 	the 	surplus 	funds 	to which 	they became 	entitled by virtue 	of
the District's 	increase 	in fringe benefits.6
On May 	31, 	1989, 	the District restated its position that any
remaining 	funds 	could only be 	added 	to 	the 	"flexible 	spending
accounts."
On June 	12, 	1989, 	Douglass 	filed a grievance alleging as
follows:
On April 	25, 	1989, 	the Board of Education
unilaterally 	increased 	the 	District's 	fringe
benefit 	contribution by 	five 	hundred 	dollars
($500). 	I have been denied my contractual
right to 	apply 	some 	or all 	of 	those 	funds 	at
my discretion toward one 	of 	the health and
welfare 	options 	listed 	in Appendix A of 	the
Collective 	Bargaining Agreement.
6The Association alleges, 	and the District does 	not dispute,
that 	employees who 	started 	employment with 	the 	District 	after
September 	1988 were 	allowed to make 	choices 	from the 	fringe
benefit 	selection sheet, 	including the 	selection of 	life
insurance. 	The 	District 	apparently 	contends 	employees 	like Mary
Douglass, 	who were 	employed prior to September 	1988, 	are not
entitled to make that 	choice.
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On July 	14, 	1989, 	the District responded to the grievance by
letter as 	follows:
On April 25, 	1989, 	the Temple City Unified
School 	District 	Board 	of 	Education 	ended
negotiations 	for the 	1989-90 	school 	year by
unilaterally adopting its 	last, 	best, 	and
final offer on Articles VI, VIII, XIV, 	and
XV.
This 	unilateral 	action caused 	those Articles
to become part of 	Board Policy, 	which removed
the 	four 	articles 	from the 	current 	contract
between the 	Temple 	City 	Unified 	School
District 	and 	Temple 	City 	Education
Association.
Since Article XV is 	no 	longer a part of the
current contract, 	and thus 	is not grievable,
your 	grievance 	regarding 	this 	matter will 	not
be 	processed.7
BOARD AGENT'S 	DECISION
The 	Board agent dismissed the 	charge 	for 	two 	reasons.
First, 	he 	found that the 	employee's 	right 	to 	select his 	or her
benefits 	was 	qualified by 	the 	language 	in the 	benefit 	selection
sheet stating that: 	(1) 	if "any changes are made 	. 	. 	. 	proper
enrollment 	forms 	must be 	obtained 	and returned 	to 	the 	Personnel
Office by September 	12, 	1988"; 	(2) 	unit member Douglass was
seeking a change in her benefits; 	and 	(3) 	she 	failed to return
the proper enrollment forms by September 	12, 	1988. 	He then
concluded:
7In Temple City Education Association v. 	Temple City 	Unified
School District 	(1989) 	Order No. 	Ad-190, 	this Board found that an
earlier 	charge 	filed 	by 	the Association 	concerning Article 	XV of
the 	same 	collective 	bargaining 	agreement was 	not 	deferrable 	to
binding 	arbitration under 	the 	deferral 	doctrine 	set 	forth 	in 	Lake
Elsinore School District 	(1987) 	PERB Decision No. 	646.
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It appears that in September, 	1988, 	she had
requested that the 	change be made 	"when and
if 	a 	settlement was 	reached which would
increase my benefits," 	but there 	is 	no
allegation that 	under 	the 	District's 	policy
this 	request was 	equivalent 	to 	returning the
proper enrollment 	forms.
Thus, 	the Board agent 	found that the employee's 	right to 	select
fringe benefits was 	conditioned upon his 	or her completion of- the
"proper enrollment 	forms" 	and that, 	in rejecting Douglass'
benefit 	selection based upon her 	failure 	to 	complete 	said 	forms,
the 	District was 	not 	changing policy but 	enforcing 	existing
policy.
Second, 	the Board agent 	found that, 	even if Douglass had
returned the proper enrollment forms by September 	12, 	1988, 	there
was 	no allegation or 	evidence 	that 	the District 	changed 	its
policy 	in a way 	that 	had 	a 	generalized 	effect 	or 	continuing
impact upon the 	terms 	and conditions 	of 	employment 	of bargaining
unit members.
EXCEPTIONS
The Association 	excepts 	to 	the 	Board 	agent's 	decision 	on 	two
grounds. 	First, 	the Association argues 	that the Board agent's
decision was 	based on mistake of 	fact 	as 	to the meaning of 	the
language 	in the benefit 	selection sheet. 	In its 	exceptions, 	the
Association contends:
The 	language 	from the 	"Benefit 	Selection
Sheet" 	refers to the forms 	of the 	insurance
companies which must be 	completed upon
initial 	enrollment 	in any of 	the health
insurance plans. 	Once an employee has
completed the 	insurance 	company 	forms 	for
initial 	enrollment 	in a health benefit plan,
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coverage under the plan 	is 	established.
These 	enrollment 	forms 	do 	not 	affect the
employees 	[sic] 	right to determine how the
District's 	fringe 	benefit 	contribution will
be 	allocated 	among 	the plans 	in which the
employee 	is 	enrolled.
(Emphasis 	in original; 	p. 	6.)
The 	District's 	response 	to 	the Association's 	appeal 	of 	the
dismissal consists, 	in its entirety, 	of the Board agent's warning
and dismissal 	letters 	and does 	not 	specifically respond 	to 	the
Association's 	interpretation of 	the 	benefit 	selection 	sheet
language.8 We do not 	find that 	a determination as 	to 	the 	meaning
of 	the benefit 	selection 	sheet 	language 	is 	essential 	to 	the
disposition of 	this 	case. 	The only 	issue here 	is whether
sufficient 	facts9 were alleged to 	state 	a prima 	facie 	case 	of
unlawful 	unilateral 	change. 	To 	state 	such a prima 	facie 	case,
the Association must 	allege 	facts 	indicating that 	action was
taken which 	changed the 	status 	quo 	regarding a matter within the
scope 	of 	representation without 	giving 	the 	exclusive
representative notice and opportunity to bargain; 	or, 	if
8Although 	this 	alleged mistake 	of 	fact 	appeared 	in 	the 	Board
agent's warning letter, 	the Association failed to 	set 	forth 	its
own interpretation 	in its 	first 	amended 	charge. 	Had the
Association done 	so, 	the Board agent would have had 	to presume
the 	truth 	of 	the Association's 	interpretation and perhaps 	would
have reached a different result. 	(See 	footnote 	9, 	infra.) 	Since
we must make 	our decision based on the 	contents 	of 	the 	charge,
and 	since the Association's 	interpretation is 	not 	set 	forth
therein, 	we do not base our decision upon the Association's
interpretation of 	the disputed 	language.
9 In reviewing the dismissal 	of 	a 	charge 	for 	failure 	to 	state
a prima 	facie 	case, 	the allegations 	in the 	charge 	are presumed to
be true. 	(San Juan Unified School 	District 	(1977) 	EERB Decision
No. 	12.) 	(Prior to January 	1, 	1978, 	PERB was known as the
Educational 	Employment 	Relations 	Board.)
8

negotiations have occurred, 	that the matter was 	not negotiated to
agreement 	or through 	impasse prior to 	implementation of 	the
change. 	(San Francisco Community College District 	(1979) 	PERB
Decision No. 	105.) 	Furthermore, 	to be unlawful, 	the change must
amount 	to 	a 	change 	in policy having 	either 	a 	generalized 	effect
or a 	continuing 	impact on the matter within 	scope of
representation. 	(Grant 	Joint 	Union High 	School 	District 	(1982)
PERB Decision No. 	196.)
In the instant case, 	the Association has alleged, 	in effect,
that, 	prior to May 	17, 	1989, 	all certificated unit members had
the 	right to determine how the 	District's 	fringe benefit
contribution was 	allocated 	among the 	benefit plans 	in which 	the
individual was 	enrolled. 	The Association has 	further 	alleged
that on or about May 	17, 	the District unilaterally 	limited or
eliminated the unit members' 	right to 	select how their 	fringe
benefit 	allocations 	would be 	spent. 	According to 	the
Association, 	under the District's policy, 	implemented in May
1989, 	those 	employees 	employed after September 	1988 were 	entitled
to 	allocate 	the 	fringe benefit 	increase 	to 	the benefit 	of 	their
choice. 	Those 	employees who were 	employed prior to 	September
1988, 	and who had been 	funding their 	fringe benefit 	selections
through payroll deductions, 	were entitled to a refund of 	those
deductions, 	retroactive to October 	1988. 	Those employees
employed prior 	to 	September 	1988, 	and who were 	not 	already 	taking
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payroll deductions 	(as was 	the 	case with Douglass) 	were 	no 	longer
entitled to 	choose where 	to 	allocate 	the 	retroactive 	fringe
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benefit 	increase 	implemented 	in May 	1989, 	but were 	being 	forced
to 	allocate 	the 	increase 	to 	a 	"flexible 	spending account." 	The
Association adequately alleges, 	for purposes 	of 	issuance of 	a
complaint, 	that 	this 	forced allocation constituted 	a 	unilateral
change 	in past practice 	and/or a violation of 	the 	contract.10
The Association also 	excepts 	to 	the 	Board agent's 	finding
that, 	assuming there was 	a change 	in policy, 	the policy did not
have 	a 	generalized 	effect 	or continuing 	impact upon the 	terms 	and
conditions 	of 	employment of bargaining unit members. 	The
Association did allege 	that 	Douglass 	and 	other unit 	members 	were
disadvantaged by the 	District's 	change 	in policy. 	The 	employees
employed prior to 	September 	1988 	did not 	receive 	the 	full 	benefit
of 	the 	District's 	increase 	in the 	fringe benefit 	allocation as
they were unable 	to 	apply the 	District's 	contribution to 	the
insurance benefits 	of their choice. 	The alleged change 	in policy
affects 	not 	only those 	employees 	individually disadvantaged, 	but
also constitutes a new status quo as to the unit members' 	rights
with regard 	to 	allocation of health 	and welfare benefits. 	Thus,
we would 	find 	that 	the alleged 	change 	in policy does 	have 	a
generalized 	impact 	and 	continuing 	affect 	on bargaining 	unit
members.
For the reasons 	stated above, 	we 	find that the 	charge 	states
a prima 	facie 	case 	of unlawful 	unilateral 	change.
10See footnote 7, 	supra.-
10

ORDER
On the basis 	of 	the 	foregoing decision and on the 	record 	as
a whole, 	it 	is 	hereby ORDERED that the Board agent's 	dismissal 	of
the 	charge 	in Case No. 	LA-CE-2886 	is 	REVERSED and the 	charge 	is
REMANDED 	to 	the General 	Counsel 	for 	issuance of 	a 	complaint 	and
appropriate 	further proceedings.
Chairperson Hesse 	and Member Camilli 	joined 	in this 	Decision.
11