Yuba Community College District (PERB 0855E)

STATE 	OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
YUBA COLLEGE 	FACULTY ASSOCIATION,
Charging 	Party,
v.
YUBA COMMUNITY COLLEGE DISTRICT,
Respondent.
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) 	Case No. 	S-CE-1308
PERB 	Decision No. 	855
December 	14, 	1990
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Appearances: 	Robert J. 	Bezemek, 	Attorney, 	for Yuba College
Faculty Association; 	Kronick, 	Moskovitz, 	Tiedemann & Girard
by Robert A. 	Rundstrom, 	Attorney, 	for Yuba Community College
District.
Before Shank, 	Camilli and Cunningham, 	Members.
DECISION
CUNNINGHAM, 	Member: 	This case is before the Public
Employment Relations 	Board 	(PERB or Board) 	on exceptions 	filed
by 	the Yuba 	College 	Faculty Association 	(Association) 	to 	an
administrative 	law 	judge's 	(ALJ) 	proposed decision 	(attached)
dismissing 	the 	underlying 	unfair practice 	charge 	and 	complaint
alleging 	that 	the 	Yuba 	Community College 	District 	(District)
failed 	to 	negotiate 	in good 	faith by unilaterally 	changing 	a
health benefit plan during 	the 	life 	of 	a 	contract. 	The ALJ 	based
this 	decision on his 	finding 	that 	the Association 	failed 	to 	meet
its 	burden of proof 	as 	to 	the 	issue of whether any unilateral
change was 	made by the District, 	thereby resulting 	in the
District's 	failure 	to meet 	and 	confer 	in good 	faith 	in violation
______ )

of 	the Educational Employment Relations Act 	(EERA) 	section
3543.5(a), 	(b) 	and 	(c).1
In its 	exceptions, 	the Association contends 	that the
status quo, 	in this 	instance, 	was the District's provision of
the 	cluster of benefits 	in effect 	at 	the 	commencement 	of 	the
agreement, 	and the District's unilateral 	reduction in the 	scope
of 	benefits 	during the 	course 	of 	the 	agreement 	constituted an
unlawful 	unilateral 	change. 	Additionally, 	the Association argues
that 	the 	ALJ 	incorrectly 	interpreted 	the 	collective 	bargaining
agreement 	in concluding 	that 	the 	language was 	intended 	to 	allow
JEERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Prior to January 	1, 	1990, 	section 3543.5
stated, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because of 	their 	exercise of 	rights
guaranteed by this 	chapter.
(b) 	Deny to 	employee organizations 	rights
guaranteed to them by this 	chapter.
(c) 	Refuse or fail to meet and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
Although both 	the 	charge 	and 	the proposed decision define
the 	(a) 	and 	(b) 	violations as derivative, 	it should be noted for
clarification that, 	while these 	facts 	support an allegation of 	an
independent 	(b) 	violation, 	there 	is 	no 	support 	for an allegation
of 	a derivative violation of 	(a) 	based 	solely on a 	finding of 	a
(c) 	violation. 	(Tahoe-Truckee Unified School 	District 	(1988)
PERB Decision No. 	668; 	Regents of the University of California
(1989) 	PERB Decision No. 	722-H.)
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for 	some 	flexibility, 	with respect to 	the terms 	and conditions
of 	the medical plan.
We have reviewed the 	entire 	case 	record, 	including the
proposed decision, 	the Association's 	exceptions 	and the
District's 	responses 	thereto. 	The 	exceptions 	to the proposed
decision raise 	the 	same 	arguments 	previously presented 	to 	and
considered by the ALJ. 	Therefore, 	the Board finds 	the ALJ's
statement 	of 	facts 	and conclusions 	of 	law to be 	free 	from
prejudicial 	error 	and 	adopts 	the proposed decision as 	the
decision of 	the 	Board 	itself.
ORDER
Based on the 	foregoing, 	Unfair Practice Charge
No. 	S-CE-1308, 	Yuba College Faculty Association v. 	Yuba Community
College District, 	and the companion PERB complaint, 	are hereby
DISMISSED.
Members 	Shank and Camilli 	joined 	in this 	Decision.
w	3

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
YUBA 	COLLEGE 	FACULTY ASSOCIATION,
Charging 	Party,
v.
YUBA C O M M U N I T Y COLLEGE 	D I S T R I C T ,
Respondent.
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) 	Unfair 	Practice
Case N o . 	S-CE-1308
PROPOSED 	DECISION
(8/6/90)
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A p p e a r a n c e s ; 	Robert J. 	Bezemek, 	A t t o r n e y , 	for the Yuba 	C o l l e g e
Faculty A s s o c i a t i o n ; 	Kronick, 	M o s k o v i t z , 	Tiedemann & 	Girard 	by
R o b e r t A. 	Runstrom, 	for 	the 	Yuba 	Community 	College 	D i s t r i c t .
Before 	Ronald 	E. 	Blubaugh, 	A d m i n i s t r a t i v e 	Law Judge.
PROCEDURAL 	HISTORY
An 	exclusive 	representative 	contends 	here 	that 	a 	public
school 	employer 	failed 	to 	negotiate 	in 	good 	faith 	by 	u n i l a t e r a l l y
changing 	a 	health 	benefit 	p l a n 	during 	the 	life 	of 	a 	c o n t r a c t .
T h e 	employer 	replies 	that 	the 	changes 	w e r e 	imposed 	by 	the
insurance 	carrier 	and 	that 	the 	u n i o n 	declined 	its 	offer 	to
n e g o t i a t e 	about 	the 	carrier's 	action.
The 	Yuba 	College 	Faculty 	A s s o c i a t i o n 	(Association) 	commenced
this 	action 	on 	September 	2 6 , 	1989, 	by 	filing 	an unfair 	p r a c t i c e
charge 	against 	the 	Yuba 	Community 	College 	District 	( D i s t r i c t ) .
T h e A s s o c i a t i o n amended 	the 	charge 	on December 	19, 	1989, 	to
correct 	a 	m i s t a k e n 	code 	section. 	The 	General 	Counsel 	of 	the
Public 	Employment 	Relations 	Board 	(PERB) 	issued 	a 	complaint 	on
J a n u a r y 	10, 	1990. 	The 	complaint 	alleges 	that 	the 	District 	m a d e
v a r i o u s 	unilateral 	changes 	in 	the 	health 	benefit 	p r o g r a m 	in
v i o l a t i o n 	of 	Educational 	Employment 	Relations 	A c t 	sections
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
(
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3543.5(a), 	(b) 	and 	(c).1 The District answered the complaint on
January 	29, 	1990, 	denying that it had committed an unfair
practice.
A hearing was 	conducted 	in Sacramento on May 	14, 	1990. 	With
the 	filing of briefs, 	the matter was 	submitted 	for decision on
July 25, 	1990.
FINDINGS 	OF 	FACT
The Yuba 	Community College 	District 	is 	a public 	school
employer under the 	EERA. 	At all 	times 	relevant, 	the Yuba College
Faculty Association has 	been the 	exclusive 	representative 	of 	the
District's 	teaching 	staff.
Since 	1984, 	the negotiated agreement between the parties 	has
provided 	specifically 	for 	employee 	health 	coverage 	under 	a 	plan
known as 	Blue Cross 	365 	Plus.
22 Unit members were covered under
1Unless otherwise 	indicated, 	all 	statutory references 	are 	to
the Government Code. 	The Educational 	Employment Relations Act
(EERA) 	is 	found at Government Code 	section 3540 	et 	seq. 	In
relevant part, 	section 3543.5 provides as 	follows:
It 	shall be unlawful 	for a public 	school 	employer to:
(a) 	Impose or threaten to 	impose reprisals 	on
employees, 	to discriminate or threaten to discriminate
against employees, 	or otherwise to 	interfere with,
restrain, 	or coerce 	employees 	because of 	their exercise
of 	rights 	guaranteed by this 	chapter.
(b) 	Deny to 	employee organizations 	rights 	guaranteed
to 	them by this 	chapter.
(c) 	Refuse or 	fail 	to meet and negotiate 	in good 	faith
with 	an exclusive representative.
2Section 	14.1 	of the 	1987-1990 	contract provides 	as 	follows:
Health 	Benefits 	The 	Board 	shall 	provide 	all
unit members 	and 	their 	eligible dependents
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the 	same plan since prior to 	1976, 	although it was 	not
specifically 	identified 	in the 	contract until 	1984.
The 	District 	is 	one of 	50 	Sacramento Valley 	school districts
that 	have 	entered a 	joint powers 	agreement 	to provide health,
dental 	and vision 	insurance 	for their employees. 	The
organization created by the 	50 	districts 	is 	known as 	the
Tri-County Schools 	Insurance Group. 	Tri-County 	collects 	fees
from the various 	districts 	and pools 	the money 	into 	a
self-insurance 	fund. 	It 	contracts with Blue Cross 	and Gallagher
Bassett 	for claims 	administration. 	Under Tri-County's 	agreement
with Blue Cross, 	the 	insurance company provides 	a health plan
essentially 	identical 	to that 	it provides 	to 	employers who do 	not
self 	insure. 	Blue Cross 	collects 	a 	fee to cover the cost of
administration 	and 	re-insurance.
At one time, 	Tri-County's 	contract with Blue Cross 	covered
some 	600 	to 	800 	employees, 	a 	substantial 	segment of the work
force 	in the participating districts. 	Over the years 	the 	number
of 	districts with Blue Cross 	plans 	dropped 	so 	that by 	early 	1989,
only 	six 	districts 	continued to have Blue Cross 	coverage. 	With
an 	increase 	in fees 	to $37.03 	per 	employee per month which Blue
Cross 	announced 	in mid-1989, 	all but Yuba Community College
District dropped the 	carrier. 	The 	other districts 	switched to a
with 	a 	fully paid health 	insurance plan,
including 	an annual 	routine physical
examination benefit 	for 	the 	unit 	member 	and
spouse. 	The carrier of the plan shall be
Blue Cross 	and the 	specific 	coverage 	shall be
Plan 365 	Plus. 	Supplier of 	named plan to be
determined by 	the 	District.
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competing plan offered by 	Gallagher 	Bassett which 	came with 	a
monthly 	administrative 	fee 	of 	only $12.
After the mid-1989 	rate 	increase, 	only the 	faculty unit at
Yuba 	Community 	College 	District 	remained with 	the 	Blue 	Cross
plan. 	The faculty unit comprises 	some 	174 participants, 	124 of
whom 	are 	current 	employees 	with 	the 	rest 	being 	retired 	employees
or 	surviving spouses. 	Under Blue Cross 	corporate guidelines, 	the
company 	generally will 	not write 	health plans 	that 	cover 	less
than 60 per cent of an employer's work force. 	This 	rule 	is 	due
in part 	to the 	economics 	of 	administering a plan where 	the 	larger
the group, 	the 	smaller the cost per employee.
It 	has 	been the practice 	for Blue Cross 	to periodically make
changes 	in 	its 	insurance plans. 	Even 	since 	the Blue Cross 	365
Plus plan has 	been written into the Yuba 	faculty contract, 	Blue
Cross has made changes 	in the plan. 	George Shaw, 	the District's
chief 	negotiator, 	testified that 	Blue Cross 	unilaterally made
several 	enhancements 	to the plan between 	1984 when it was 	first
written 	into the contract and 	1987 when it was 	renewed. 	He 	said
these 	changes were made without 	complaint 	from the 	faculty. 	On
these occasions, 	he testified, 	faculty members 	simply received
notices 	of 	amendments to the health plan.
By letter of August 29, 	1988, 	Blue Cross notified Tri-County
that 	it planned to make three changes 	effective October 	1, 	1988.
Blue Cross proposed to: 	1) 	more 	closely monitor hospitalizations
through a 	system of 	case management, 	2) 	reduce payments 	for
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services 	rendered in non-contracting hospitals,3 and 	3) 	impose a
ninety-day 	limit 	for 	the 	filing of 	claims. 	The 	letter advised
Tri-County 	that 	although 	it 	could 	refuse 	the 	changes 	initially,
the 	changes 	would be 	included 	as 	a 	condition of 	the 	next
renewal.4
District 	Superintendent 	Patricia 	Wirth 	thereafter 	called 	a
faculty 	meeting where 	business 	manager 	Ruby 	Henry described 	the
District's 	health 	insurance program. 	Ms. 	Henry went through the
covered 	benefits 	and 	explained how health plans 	are 	funded
through Tri-County and the relationship with Blue 	Cross. 	She
described 	each of 	the 	changes which Blue Cross was 	attempting to
secure. 	She also described the Gallagher Bassett plan which had
recently 	been 	adopted 	for 	the 	District's 	classified 	employees.
Association President 	Jim 	Finstad was 	present 	at 	the 	meeting 	and
asked 	questions.
The 	Blue Cross 	request 	for change was 	refused by 	Don Soli,
executive director 	for Tri-County. 	He took the position that
Tri-County had 	a 	valid 	contract with 	Blue 	Cross 	which 	Blue 	Cross
could not 	change unilaterally. 	He 	insisted 	that 	Blue Cross 	could
not 	change 	the plan until 	after the 	expiration of 	the 	insurance
3Non-contracting hospitals 	are 	those which have 	no 	cost
limitation agreements 	with Blue Cross.
4Blue Cross 	regional 	sales 	manager Bob 	DeTour 	testified 	that
Blue Cross 	knew that the 	school 	districts 	had 	labor agreements,
"so basically what we did 	is we 	gave 	them a 	two-year window
period and we 	said in the 	first year you can 	. 	. 	. 	put any of
these, 	all of these, 	or none of these in; 	but, 	the next time
around, 	when we renew, 	we need to 	include these 	into the 	fee 	for
service environments 	. 	. 	. 	." 	(Reporter's Transcript, p. 	78)
5

carrier's contract with Tri-County on June 30, 	1989. 	Blue Cross
then dropped 	its 	demand 	for changes 	in 	1988.
Some time prior to April 	4, 	1989, 	Blue Cross 	sent Tri-County
an 	amendment 	to 	its 	contract 	entitled 	"Coverage 	During 	a 	Labor
Dispute." 	The 	amendment provides 	that 	eligible 	subscribers 	could
arrange 	for 	continued health 	coverage 	during a 	strike 	by paying a
fee 	to Blue Cross. 	The amendment 	fixes 	responsibility 	for
collecting 	the 	fees 	and 	remitting 	them to 	Blue 	Cross 	on the
union. 	The amendment further provides 	that a minimum of 	75
percent 	of 	the 	subscribers 	on 	strike would have 	to participate
for the 	coverage to be 	effective. 	Coverage would 	last 	throughout
the 	labor dispute up to a maximum of 	six months.
On April 	11, 	1989, 	District business manager Ruby Henry gave
Association 	President 	Jim Finstad 	a 	copy 	of 	the 	amendment
pertaining to 	coverage 	in a 	labor dispute. 	She 	asked him what
the 	District 	should do with 	it. 	He told her to 	simply 	send 	it
out which 	she did on April 	18.5
Bob DeTour, 	regional 	sales manager for Blue Cross, 	testified
that 	the provision 	for coverage during 	strikes 	was 	amended by
Blue Cross 	into all policies 	issued by the 	company. 	He 	said 	Blue
Cross viewed the coverage as mandatory under state law. 	Mr. 	Soli
testified 	that 	Tri-County did 	not 	solicit 	the 	change 	and 	had 	no
5Initially, Mr. 	Finstad testified that he was 	not 	notified
about 	the 	amendment prior to 	its 	distribution among 	faculty
members. 	On cross-examination he modified his 	testimony to 	say
that he 	could not 	say 	for 	sure whether or not he met with
Ms. 	Henry prior to distribution of the amendment. 	Ms. 	Henry
testified 	about 	the 	discussion without 	any uncertainty.
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conversations with 	anyone 	at 	Blue Cross 	prior to 	its
implementation. 	After Tri-County 	learned of the 	change, 	it
notified 	the 	District which 	then notified 	faculty 	members.
On April 28, 	1989, 	Blue Cross notified Tri-County of the
monthly 	rate 	increase 	to 	$37.03 	per 	employee 	and 	its 	insistence
on a 	series 	of 	changes 	in the plan. 	These 	included all 	of the
changes 	first requested 	in August of 	1988 	plus 	a 	reduction 	in
coverage 	for nervous, 	mental 	and 	substance abuse benefits.
By letter of May 2, 	1989, 	the District notified the
Association about 	the health plan 	changes 	Blue 	Cross 	planned 	to
insert 	into 	the 	contract. 	The 	letter 	invited 	the Association to
contact 	the 	District business 	manager 	if 	it had 	concerns 	"about
the 	fiscal 	impact 	on 	faculty members."6 The 	District 	followed 	on
May 8, 	1989, 	with a 	letter advising that 	it was 	"ready and
willing to 	continue bargaining the 	changes" 	if 	the Association
desired to do 	so. 	George Shaw, 	the District's 	chief 	negotiator,
testified 	that 	the 	District viewed 	the 	changes 	as 	something
imposed by 	a 	third party which 	in 	effect 	reopened 	the 	contract 	if
the union wished to negotiate. 	The Association, 	however, 	did not
respond to 	the offer to 	negotiate.
6The 	District describes 	this 	letter 	as 	the 	first 	of 	"seven
letters 	to the Charging Party 	informing 	it 	of 	changes 	and
offering 	to 	discuss 	and 	negotiate 	those 	changes 	with the Charging
Party." 	I 	believe 	that 	four of 	the 	letters 	reasonably 	can be
read 	as 	offering 	the Association the 	opportunity 	to 	begin
negotiations. 	These are the letters of May 2, 	1989, 	(Charging
Party Exhibit no. 	3 ) ; 	May 8, 	1989, 	(Charging Party Exhibit no.
4 ) ; 	May 17, 	1989, 	(Charging Party Exhibit no. 	5 ) ; 	and July 17,
1989, 	(Charging Party Exhibit no. 	13).
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On May 	15, 	1989, 	Blue Cross 	sales 	manager DeTour notified
Tri-County 	that 	Blue 	Cross 	would 	not 	renew 	its 	contract, 	thereby
cancelling 	its 	insurance 	effective 	July 	1, 	1990. 	He 	attributed
the 	decision 	not 	to 	renew 	to 	low participation 	of 	Tri-County
employees 7 in Blue Cross. 	On May 	17, 	District administrator
George 	Souza 	wrote 	Association 	President 	Finstad 	about 	the 	Blue
Cross 	cancellation 	and 	proposed 	shifting 	coverage 	to 	Gallagher
Bassett. 	He 	invited 	the Association 	to 	offer 	alternative
proposals 	and 	offered 	to 	meet 	and 	negotiate 	about 	the 	issue.
The 	Association 	did 	not 	immediately 	reply 	to 	the 	District's
letter, 	but 	Mr. 	Finstad 	did promptly 	contact Mr. 	DeTour 	of 	Blue
Cross. 	He 	urged Mr. 	DeTour to 	rescind his 	cancellation of
insurance 	and warned 	that 	Blue 	Cross 	would 	be 	drawn 	into 	a 	labor
dispute 	if 	it did 	not. 	District business 	manager Ruby 	Henry, 	by
separate 	communications, 	also urged Mr. 	DeTour 	to 	rescind 	the
cancellation 	of 	insurance.
By 	letter of May 	22, 	1989, 	Mr. 	DeTour rescinded 	cancellation
of 	the 	Blue 	Cross 	Tri-County 	Schools 	plan. 	However, 	he 	adhered
to 	the 	schedule 	of 	charges 	set 	out 	in his 	April 	28 	letter 	and
described 	the 	following 	contractual 	changes 	as 	"mandated 	and 	will
be 	implemented:"
1) 	A 	25 	percent 	cutback 	in payments 	for non-
contracting 	hospitals;
2) 	A ninety-day 	limit 	for 	claims 	submission;
7In his 	letter 	of 	cancellation, 	Mr. 	DeTour put 	the 	level 	of
participation at 	between 	5 	percent 	and 	6 	percent.
88

3) 	Institution of a managed care package.
He waived his 	earlier 	insistence 	on a 	reduction 	in nervous 	and
mental benefits.
District 	administrator 	Souza 	testified 	that 	the 	changes 	were
imposed by Blue Cross. 	He 	said he 	asked 	if 	the plan the 	District
previously 	enjoyed 	could be 	obtained 	at 	any price 	but was 	told
that 	it 	could not. 	Mr. 	DeTour confirmed 	in testimony that the
changes were mandatory, 	citing the 	language of his 	letter. 	He
said the 	changes were going 	into 	all 	365 	Plus plans which Blue
Cross 	had 	in effect. 	He 	said 	that 	company policy demanded that
the changes be made.
Association 	President 	Finstad 	consulted with 	the 	union's
representative 	council, 	first 	about the 	threatened cancellation
of 	the Blue Cross plan, 	and then about the 	subsequent 	changes 	in
coverage. 	The 	council 	concluded that 	the union 	should not
negotiate with the 	District and directed Mr. 	Finstad to press 	for
continued 	coverage under the 	existing plan. 	The union officers
concluded 	that 	they were 	under 	no 	obligation to 	negotiate because
of 	the 	existence 	of 	a 	zipper 	clause 	in their contract with the
District.8
By 	letter of May 22, 	Association President Finstad 	informed
the 	District 	that 	it declined 	to meet 	and 	negotiate 	regarding
8Article 	17.3 	of 	the 	agreement provides 	that during the 	life
of 	the 	contract, 	"the Board and the Association expressly waive
and 	relinquish 	the 	right 	to bargaining 	collectively 	on matters"
except 	for 	certain 	specified 	exceptions. 	The Association
concluded 	that 	the proposed Blue Cross 	changes 	did 	not 	fit 	into
any of 	the 	listed 	categories.
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alternative health 	insurance. 	He 	asserted that 	the 	District 	had
engineered 	the 	changes 	in order 	to 	unilaterally 	impose 	the
Gallagher Bassett plan on the 	faculty. 	He 	insisted that 	the
District 	continue to 	offer the 	Blue Cross 	365 	Plus 	plan as
required 	under 	the 	contract between the parties.
By 	letter of June 27, 	Association attorney Robert J. 	Bezemek
advised 	the 	District 	that 	the 	union 	considered the 	changes 	in the
plan to 	be mid-term unilateral 	changes. 	He demanded that 	the
District 	restore 	the 	benefits 	that 	existed prior 	to 	the
unilateral 	changes. 	He warned that a 	failure to make the 	change
would result 	in the 	filing of 	an unfair practice.
At 	least 	one unit member was 	negatively affected by 	the
change 	in health plan coverage. 	That member's 	son was 	treated 	in
a non-contracting hospital. 	Under the revised plan, 	the unit
member was 	reimbursed for only 	75 percent of the 	costs.
LEGAL 	ISSUE
Did 	the 	District unilaterally 	change 	health benefit 	coverage
and 	thereby 	fail 	to 	negotiate 	in good 	faith 	in violation of
Section 3543.5(c) 	and, derivatively, 	(a) 	and 	(b)?
CONCLUSIONS 	OF 	LAW
It 	is well 	settled that an employer that makes 	a pre-impasse
unilateral 	change 	in an established, 	negotiable practice violates
its 	duty to meet and negotiate 	in good faith. 	NLRB v. 	Katz
(1962) 	369 U.S. 	736 	[50 LRRM 2177]. 	Such unilateral changes are
inherently destructive of 	employee 	rights 	and are 	a 	failure per
se 	of 	the duty to negotiate 	in good 	faith. 	See Davis 	Unified
10

School District, 	et al. 	(1980) 	PERB Decision No. 	116; 	State of
California 	(Department of Transportation) 	(1983) 	PERB Decision
No. 	361-S.
Established practice 	may be 	reflected 	in a 	collective
bargaining 	agreement 	(Grant 	Joint 	Union High 	School 	District
(1982) 	PERB Decision No. 	196) 	or where the agreement is vague or
ambiguous, 	it may be determined by an examination of 	bargaining
history 	(Colusa 	Unified 	School 	District 	(1983) 	PERB 	Decisions
No. 	296 	and 296(a)) 	or the past practice 	(Rio Hondo Community
College District 	(1982) 	PERB Decision No. 	279, 	Pajaro Valley
Unified School District 	(1978) 	PERB Decision No. 	51).
An employer makes no unilateral 	change, 	however, 	where an
action the 	employer takes 	does 	not alter the 	status 	quo. 	"[T]he
'status 	quo' 	against which an employer's 	conduct 	is 	evaluated
must 	take 	into 	account 	the 	regular and 	consistent past patterns
of 	changes 	in the 	conditions 	of 	employment." 	Pajaro Valley
Unified School District, 	supra. 	PERB Decision No. 	51. 	Thus,
where an employer's 	action was 	consistent with the past practice,
no 	violation was 	found in a 	change that was 	not 	a 	change 	in the
status quo. 	Oak Grove School District 	(1985) 	PERB Decision
No. 503.
The Association argues 	that 	health benefits 	are 	negotiable
subjects 	under the 	EERA. 	Any unilateral 	change 	in health
benefits which 	intimately affects 	employees, 	the Association
continues, 	is 	a 	failure to negotiate 	in good faith and an unfair
practice. 	The union contends 	that 	the 	status 	quo was 	the 	level
11

of 	benefits 	outlined 	in the 	certificate 	of 	coverage 	at 	the 	time
the 	contract was 	signed. 	The 	union argues 	that 	the 	employer was
obligated to maintain those benefits 	for the 	life 	of 	the
contract. 	In addition, 	the Association rejects the contention
that the changes were mandated by Blue Cross. 	It argues 	instead
that 	the 	District 	used the 	changes 	as 	part of 	a 	strategy to
convince 	employees 	to agree to a different 	carrier.
The 	District 	sets out a multi-faceted defense. 	There has
been no unilateral 	change, 	the District argues 	first, 	because it
at 	all 	times 	has been in compliance with the contract. 	The
contract 	requires 	only that 	it 	furnish the 	Blue Cross 	365 	Plus
plan and, 	the District argues, 	it has done this. 	The District
contends 	that 	the 	contract does 	not 	require 	the maintenance 	of
any 	specific 	medical 	coverage without 	the possibility 	of
modification. 	Thus, 	changes 	in the plan did not, 	in the
District's view, 	change the status quo. 9
It 	is undisputed that the 	subject of health benefits 	is
clearly 	negotiable under the 	EERA. 	The 	key question 	in these	1100
9The District 	sets out three additional arguments: 	1) 	that
the Association waived 	its 	right 	to bargain when, 	after receiving
notice of the 	impending changes, 	it made no demand to negotiate;
2) 	that 	the 	changes 	in the health care plan were 	implemented as 	a
business 	necessity, 	and 	3) 	that 	its actions were excused under
the doctrine of 	impossibility of performance. 	As will be 	seen,
it 	is 	unnecessary to reach any of these 	contentions.
10In relevant part, 	EERA section 3543.2 provides 	as 	follows:
(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 	Section 	53200 	. . . .
12

facts 	is whether the 	employer made a unilateral 	change. 	The
answer 	lies 	in determining the 	nature 	of 	the 	status 	quo prior to
the change in benefits. 	If, 	as the Association argues, 	the
status 	quo was 	the 	exact 	set 	of 	insurance benefits 	in place 	at
the time of 	the 	signing of the contract, 	then the District made a
change. 	If, 	as the District argues, 	the status quo was the
particular plan 	in its 	continuously 	evolving 	form, 	then the
District made no 	change.
The prevailing weight of 	the 	evidence 	lies with the
District. 	The status quo was, 	as the District argues, 	the Blue
Cross 	365 	Plus plan, 	a plan whose terms had evolved over the
years. 	The 	status quo was 	not a particular 	set of benefits 	in
place on the date the contract was 	entered in 	1987. 	Both the
text of 	the 	applicable 	contract 	clause and the past practice
support 	this 	finding.
As 	the District argues, 	the very wording of 	the applicable
contractual 	clause 	implies 	that 	the plan could 	change. 	The
contract requires 	only one 	specific 	type of benefit, 	an annual
physical 	exam for member and 	spouse. 	Reference 	to 	such a
specific 	benefit 	implies 	the possibility 	of plan changes 	but
ensures retention of annual physical exams, 	regardless. 	If the
contract were 	intended to preclude all 	changes, 	one might 	expect
it 	to 	incorporate 	the plan's 	benefits 	as 	contained 	in plan
documents 	as of a certain date. 	Or, 	one might expect the
contract 	to 	set out a more detailed 	listing of 	health benefits.
The 	contract 	clause does 	neither.
13

Moreover, 	District 	negotiator George 	Shaw testified without
contradiction 	that 	Blue 	Cross 	had made 	several 	uncontested
changes 	since the plan was written into the 	contract. 	Thus 	the
status quo was a 	"regular and consistent past pattern. 	. 	. 	of
changes"11 in the health plan. 	At any given time, 	the 	365 	Plus
plan 	in 	effect was 	different 	from the plan by the 	same name 	in
effect at an earlier time. 	There 	is 	no 	evidence that the 	changes
of 	1989 were 	in any way 	inconsistent with past 	changes.12
The burden of proof 	for 	showing a 	change 	in the past
practice 	is 	that of the 	charging party. 	Oak Grove 	School
District, 	supra, 	PERB Decision No. 	503. 	On this 	set of facts, 	I
cannot 	conclude 	that 	the Association has 	met 	its 	burden of proof.
The 	charging party has 	failed 	to 	establish by 	a preponderance 	of
the 	evidence that 	the District made 	any unilateral 	change 	and
thereby 	failed to meet and confer in good 	faith. 	Accordingly, 	I
conclude 	that 	the 	complaint must be dismissed.
PROPOSED 	ORDER
Based upon the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law and 	the 	entire 	record 	in this 	matter, 	unfair practice 	charge
S-CE-1308, 	Yuba College Faculty Association v. 	Yuba Community
12The Association presented 	no 	evidence 	to 	counter 	testimony
that 	the 	changes were consistent with a past practice of 	changes
in the health plan. 	Changes 	that 	so deviate 	from the past
practice 	as 	to 	change 	its 	"quantity and kind" 	are 	inconsistent
with the 	status 	quo 	and 	constitute 	a 	failure to negotiate 	in good
faith. 	Oakland Unified 	School 	District 	(1983) 	PERB Decision
No. 367.
14
11 Pajaro Valley Unified School District, 	supra. 	PERB
Decision No. 	51.
-------------------- 	- 	--

College 	District, 	and the 	companion PERB 	complaint 	are hereby
DISMISSED.
Pursuant to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this 	Proposed Decision and Order 	shall
become 	final 	unless 	a party 	files 	a 	statement of 	exceptions 	with
the 	Board 	itself 	at 	the headquarters 	office 	in Sacramento within
20 	days 	of 	service of this 	Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit 	number the portions 	of 	the record, 	if any,
relied upon for 	such 	exceptions. 	See California Administrative
Code, 	title 8, 	part III, 	section 32300. 	A document is considered
"filed" 	when actually received before 	the 	close 	of 	business
(5:00 p.m.) 	on the last day set for filing 	". 	. 	. o r when sent by
telegraph or 	certified or Express 	United 	States 	mail, 	postmarked
not 	later than the 	last day 	set 	for 	filing. 	. . . " 	See
California Administrative Code, 	title 8, 	part III, 	section 32135.
Code 	of 	Civil 	Procedure 	section 	1013 	shall 	apply. 	Any 	statement
of 	exceptions 	and 	supporting brief 	must be 	served 	concurrently
with 	its 	filing upon each party to 	this 	proceeding. 	Proof 	of
service 	shall 	accompany 	each 	copy 	served 	on a party 	or 	filed with
the 	Board 	itself. 	See California Administrative Code, 	title 	8,
part III, 	sections 32300, 	32305 and 32140.
Dated: 	August 	6, 	1990 	_
RONALD E. 	BLUBAUGH
Administrative 	Law 	Judge
15