Burbank Unified School District (PERB 0589E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BURBANK 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
BURBANK UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	LA-CE-2341
PERB Decision No. 	589
September 25, 	1986
Appearances: 	Reich, 	Adell 	& Crost by Anthony R. 	Segall 	for
Burbank Teachers Association CTA/NEA; 	Littler, 	Mendelson,
Fastiff 	& Tichy by Richard 	J. 	Currier 	and 	Carolyn Anne 	Hudson
for 	Burbank Unified 	School 	District.
Before Hesse, 	Chairperson; Morgenstern, 	Burt, 	Porter and Craib,
Members.
DECISION
This 	case 	is 	before 	the Public Employment 	Relations 	Board
(Board) 	on 	appeal 	by the 	charging 	party of 	the 	Board 	agent's
partial 	dismissal, 	attached hereto, 	of 	its 	charge 	alleging 	that
the 	Burbank Unified 	School 	District 	violated 	section 	3543.5 	of
the Educational Employment Relations Act 	(Gov. 	Code sec. 	3540
et 	seq.).
We have 	reviewed 	the partial 	dismissal 	and, 	finding 	it 	free
from prejudicial 	error, 	adopt 	it 	as 	the Decision of 	the 	Board
itself.
ORDER
That 	portion 	of 	the unfair 	practice 	charge 	in Case
No. 	LA-CE-2341 	concerning 	the 	alleged 	concealment 	during
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negotiations 	in the 	Spring 	of 	1985 	of 	information pertinent 	to
the 	projected cost 	of 	Blue Cross 	health 	insurance 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
By 	the 	BOARD
22

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LOS ANGELES REGIONAL OFFICE
3470 WILSHIRE BLVD., SUITE 1001
LOS ANGELES, CALIFORNIA 	90010
(213) 736-3127
June 18, 1986
Anthony R. Segall, Esq.
Reich, Adell & Crost
501 Shatto Place, Suite 100
Los Angeles, California 9 0020
Re: 	LA-CE-2341, 	Burbank Teachers Association/CTA/NEA v.
Burbank 	Unified 	School 	District
PARTIAL DISMISSAL OF UNFAIR PRACTICE CHARGE
Dear Mr. Segall:
The 	original charge 	in 	the 	above-referenced case 	alleges 	that
the Burbank Unified 	School District 	unilaterally 	increased
monthly 	employee 	contributions 	to 	the Blue Cross 	health
insurance plan 	from 	the 	"billed 	rate" 	actually paid 	by 	the
District 	ten 	times 	annually 	to 	the projected 	"contracted 	rate"
based on claims 	experience. 	The 	first amended 	charge
additionally 	alleges 	that 	the 	District failed 	to meet 	and
negotiate with 	the Burbank Teachers Association 	by 	failing 	to
disclose 	information pertinent 	to 	the 	projected 	cost 	of 	the
Blue 	Cross 	health 	insurance. 	This conduct 	is alleged 	to
violate Government Code 	section 3543.5(b) 	and 	(c) 	of the
Educational Employment Relations Act 	(EERA).
I indicated 	to 	you in my attached 	letter dated June 	10, 	1986
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 accordingly. 	You were 	further 	advised 	that unless you
amended the charge to state a prima 	facie case, 	or withdrew 	it
prior to June 17, 	1986, 	it would be dismissed.
I have not 	received 	either 	a request 	for 	withdrawal or 	an
amended 	charge 	and 	am therefore dismissing 	the charge 	based 	on
the facts and reasons contained 	in my June 	10, 	1986 	letter.
Right to Appeal
Pursuant 	to Public Employment Relations Board 	regulations, 	you
may obtain a 	review of 	this dismissal of 	the charge 	by 	filing
an appeal 	to the Board 	itself within 	twenty 	(20) 	calendar 	days
=

June 13, 	1986
LA-CE-2341
Page 	2
after 	service 	of 	this 	dismissal 	(California Administrative
Code, 	title 8, 	section 32635(a)). 	To be timely filed, 	the
original 	and 	five 	copies of 	such appeal must be 	actually
received 	by 	the Board 	itself 	before 	the close of 	business
(5:00 p.m.) 	on July 8, 	1986, 	or sent by telegraph, 	certified or
Express United 	States mail postmarked 	not 	later 	than
July 8, 	1986 	(section 32135). 	The Board's address 	is:
Public Employment Relations Board
1031 	18th Street
Sacramento, 	CA 95814
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
calendar 	days 	following 	the date of 	service of 	the appeal
(section 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 	section 	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.
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 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 	(section 32132).

June 13, 	1986
LA-CE-2341
Page 3
Final Date
If 	no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
JEFFREY SLOAN
Acting 	General 	Counsel
By
"Barbara T. 	Stuart
Regional Attorney
Attachment
cc: 	Richard J. 	Currier, 	Esq.

GEORGE DEUKMEJIAN, Governor	STATE OF CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LOS ANGELES REGIONAL OFFICE
3470 WILSHIRE BLVD.. SUITE 1001
LOS ANGELES, CALIFORNIA 	90010
(213) 736-3127
June 	10,1986
Anthony R. Segall, Esq.
Reich, Adell & Crost
501 Shatto Place, Suite 	100
Los Angeles, 	California 90020
Re: 	LA-CE-2341, Burbank Teachers Association/CTA/NEA v.
Burbank. Unified School District
Dear Mr. 	Segall:
The original charge in 	the above-referenced case alleges 	that
the Burbank Unified 	School District 	unilaterally 	increased
monthly employee contributions 	to 	the Blue Cross 	health
insurance plan from the 	"billed 	rate" 	actually paid 	by 	the
District 	ten 	times annually 	to 	the 	projected 	"contracted 	rate"
based on claims experience. 	The first amended charge
additionally alleges that 	the 	District failed 	to meet 	and
negotiate with 	the Burbank Teachers Association 	by 	failing to
disclose 	information pertinent 	to 	the 	projected cost 	of 	the
Blue Cross health insurance. 	This conduct is alleged to
violate Government Code 	section 3543.5 (b) 	and 	(c) 	of the
Educational Employment Relations Act 	(EERA).
My 	investigation revealed 	the 	following 	facts. 	The
Association and 	District 	are 	parties 	to 	a 	collective 	bargaining
agreement effective January 19, 	1984 through June 30, 1986.
The 	agreement provides 	in Article 8 	for health and welfare
benefits, 	and gives each covered employee the option of
selecting one of 	three health plans. 	One of 	those plans 	is the
health 	insurance plan administered 	by Blue Cross.
For employees selecting Blue Cross coverage, 	the District makes
a 	"tenthly" 	(ten times per year) 	premium payment. 	The premium
payment comes 	from two sources: 	the 	"District contribution"
specified 	in 	the 	agreement 	and 	"employee contribution" deducted
from the employees' wages.
Section 	8.1.1.3 	of 	the 	agreement 	provides:
Effective April 1, 	1985, 	the maximum amounts to be
contributed 	by 	the 	District 	tenthly 	for Blue Cross
(Employee, 	Two Party or Family) 	shall be no greater
than 	the 	higher 	of 	the 	full premium for 	family 	for
either 	the 	Ross 	Loos 	Health 	Care Plan under 8.1.1.1.
or 	the 	Kaiser 	Health 	Care Plan under 	8.1.1.2.
($297.62 	in 1984-85)

June 10, 	1986
LA-CE-23 41
Page 2
This 	section was 	amended effective April 	1, 	1985. 	It
previously provided 	from January 19, 	1984 	through April 1, 	1985
Effective October 1, 	1983, 	the maximum amounts
to 	be contributed 	by 	the District 	tenthly 	for
Blue Cross are as follows:
Full 	Premium District
Contributions Employee
Contributions
Employee 	$154.73 	$154.73 	- 	0 	-
Two 	Party 	265.66 	242.16 	$23.50
Family 	355.16 	314.36 	40.80
Under this 	previous section 	8.1.1.3 	and 	from April to September
1985 under the new version, 	the District deducted 	from
employees' 	paychecks the tenthly billed 	rate. 	In September
1985 the District 	increased the 	employees' 	contribution 	to 	the
projected contracted 	rate. 	The District states that 	if
employee claims 	do 	not 	exceed 	the 	billed 	rate 	the 	excess 	cost
will be refunded 	to 	the employees.
The District's claimed 	authority for 	its 	action 	is 	the 	new
section 	8.1.1.3 	which 	arguably does 	not 	set 	a maximum for
employee contributions. 	According 	to the District, 	when 	the
parties were 	negotiating 	the current version of 	section
8.1.1.3,. 	the District advised the Association that 	insurance
premiums 	were substantially 	increasing 	and 	that 	the District
did 	not 	intend 	to 	absorb 	all 	increased 	costs. 	For 	this 	reason
the District 	specifically 	negotiated 	chat 	the 	"maximum 	amounts
to 	be contributed 	by the 	District 	tenthly 	for 	Blue Cross
. . . 	shall 	be no 	greater 	than" 	the 	specified 	amounts. 	No
maximum on 	employee contributions 	was purposely negotiated with
the 	intent that the employees would 	absorb the unknown
increased costs 	of 	insurance coverage.
According 	to the District, 	after this language was negotiated,
on or about June 26, 	1985, 	the District received a letter
informing 	it 	that 	the District owed Blue Cross the total 	of
$172,285 	for 	the contract year 	1983-84 because the claims 	for
that 	fiscal year 	had 	exceeded 	the 	"billed 	rate." 	The District
paid 	this 	entire 	"contracted 	rate" 	because the parties*
agreement 	limited 	enployee contributions 	to a 	specified 	amount.
..

June 10, 	1986
LA-CE-2341
Page 3
The 	Association 	first 	learned 	of 	the District's 	contracted 	rate
liability 	when this change occurred 	in September 	1985. 	At the
same 	time 	the Association 	learned 	that 	in 	the Spring 	1985
negotiations 	the 	District 	knew of 	the potential June 	1985
liability, 	and 	anticipated 	total health plan costs 	to 	employees
to exceed 	the 	billed 	rate 	in subsequent contract years 	as well.
The 	District 	argues 	that 	the bad faith bargaining 	allegation 	is
beyond 	the 	statute 	of 	limitations contained 	in Government Code
section 3541.5(a), 	even counting from September 1985, 	since the
first amended charge was filed on May 8, 	1986. 	The District
also argues that 	a prima facie case 	is not stated. 	For 	the
reasons 	that 	follow, 	it is concluded 	that the statute of
limitations argument has merit.
The 	first 	amended charge was 	filed 	six months 	after the
Association had 	knowledge of 	the District*s 	bargaining 	conduct
since 	it 	knew in 	September 	1985 that the District had
information 	regarding 	the 	expected 	health plan 	liability 	during
the prior 	negotiations. 	An exception to 	the 	section 	3541.5(a)
limitations period may be made where 	an 	amended charge 	is 	found
to 	"relate 	back" 	to the original charge. 	Gonzales Union High
School District 	(1984) 	PERB Decision No. 	410.
In the 	Gonzales case an amendment was 	allowed because 	it merely
added 	another 	theory 	based 	on 	the 	same events 	already at 	issue
in the case. 	In Monrovia Unified School District 	(1984) 	PERB
Decision No. 	460, 	the Board also discussed the relation-back
doctrine but did not allow an amendment. 	The original charge
alleged 	a 	unilateral change of the employer's policy on
discipline. 	The 	amendment 	alleged 	that the employer 	refused
the 	employee 	representation 	at the parent conference which led
to 	the 	disciplinary action against 	the employee. 	The Board
stated 	that 	the 	issue had 	not 	been 	raised 	by the 	initial
charge, 	notwithstanding 	that some mention of 	it was buried 	in
the attachments to 	the charge.
The 	instant case is similar to 	the Monrovia case. 	The
original charge 	alleged 	a 	pure 	unilateral 	change 	in 	employee
health 	insurance deductions. 	Even broadly read, 	it did not
raise the 	issue 	that the District bargained 	in bad 	faith by
withholding 	information during 	bargaining 	pertinent 	to
projected 	health 	insurance 	costs, 	although 	the Association was
in possession of 	the pertinent facts 	by September 	1985.
For 	these 	reasons, 	the allegation of 	the 	first 	amended charge
that 	the 	District 	bargained 	in 	bad 	faith, 	as presently written.

June 10, 	1986
LA-CE-2341
Page 4
does not 	state 	a prima facie case. 	If you feel 	that 	there are
any 	factual 	inaccuracies 	in 	this 	letter or 	any additional facts
which would correct 	the deficiencies 	explained 	above, 	please
amend 	the 	charge 	accordingly. 	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 be
served on 	the 	respondent 	and 	the 	original proof 	of 	service must
be filed with PERB. 	If I 	do not receive an amended charge or
withdrawal from you before June 17, 	1986, 	I shall dismiss the
above—described 	allegation from your 	charge. 	If 	you have 	any
questions on how to proceed, please call me at 	(213) 	736-3127-
Sincerely,
Barbara T. 	Stuart
Regional Attorney
BTS:eb.