Regents of the University of California (University Professional and Technical Employees) (PERB 1169H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNIVERSITY 	PROFESSIONAL 	AND
TECHNICAL EMPLOYEES, 	CWA
LOCAL 9119, 	AFL-CIO,
Charging 	Party,
v.
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. 	SF-CE-445-H
PERB Decision No. 	1169-H
September 12, 	1996
Appearances: 	Eggleston, 	Siegel 	& LeWitter by James E. 	Eggleston,
Attorney, 	for University 	Professional 	and Technical 	Employees,
CWA Local 9119, AFL-CIO; 	Hanson, 	Bridgett, Marcus, Vlahos & Rudy
by Douglas H. 	Barton, 	Attorney, 	for the Regents of 	the University
of California.
Before Caffrey, 	Chairman; 	Garcia and Johnson, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	of a Board agent's
dismissal 	(attached) 	of 	an unfair practice 	charge 	filed by the
University Professional 	and Technical 	Employees, 	CWA Local 	9119,
AFL-CIO 	(UPTE). 	In its 	charge, 	UPTE alleged that 	the Regents
of 	the University of 	California 	(University) 	violated section
3571(a), 	(b) 	and 	(c) 	of the Higher Education Employer-Employee
Relations Act 	(HEERA)1 when it unilaterally changed the health
1HEERA is 	codified at Government 	Code 	section 	3560 	et 	seq.
Section 3571 provides, 	in pertinent part:
It 	shall 	be unlawful 	for the higher education
employer to do any of 	the 	following:
)
)
)
)
)
)
)
)
)
______________ !

care 	benefits 	policy without 	giving UPTE 	an opportunity 	to
bargain over 	the 	change.
The 	Board has 	reviewed 	the 	entire 	record 	in this 	case,
including UPTE's unfair practice 	charge, 	the warning and
dismissal 	letters, 	UPTE's 	appeal 	and the University's 	response
thereto. 	The Board 	finds 	the 	Board agent's 	warning and dismissal
letters 	to be without 	prejudicial 	error and adopts 	them as 	the
decision of 	the Board 	itself.
UPTE'S APPEAL
On appeal, 	UPTE argues 	that 	the Board agent 	erroneously
concluded 	that 	the 	University had a policy which permitted
certain annual 	adjustments 	to health care benefits. 	UPTE
contends 	that 	the University has 	a proposal 	on 	the 	table 	in
their negotiations 	for their 	first 	contract 	that would permit
the University 	to unilaterally adjust 	health 	care benefits 	each
year. 	UPTE argues 	that 	health benefits 	are a mandatory subject
of 	bargaining and until 	negotiations 	for a 	new 	contract 	are
completed, 	the University may not 	alter health benefits.
(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. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to engage 	in meeting and
conferring with an 	exclusive 	representative.
22

UPTE also asserts 	that 	it 	was 	not 	afforded a 	fair
opportunity to amend its charge. 	On June 3, 	1996, 	after
receiving 	the Board agent's 	dismissal 	letter, 	UPTE 	sent 	a 	letter
to 	the Board agent 	in which 	it 	requested 	that 	the 	dismissal 	be
withdrawn and 	that 	it be permitted 	to 	file 	an amended 	charge.
The Board agent 	denied the 	request 	on June 	6, 	1996.
In response, 	the University asserts 	that 	it has a long-
standing practice 	of making 	certain annual 	adjustments 	to health
care benefits. 	The University argues 	that proposals made 	to UPTE
during bargaining are 	irrelevant 	to 	determining 	the parameters 	of
the status 	quo. 	Until 	the parties 	reach agreement 	on a 	contract,
an employer does 	not 	relinquish 	its 	right 	to act 	in accordance
with 	the 	established past 	practice.
DISCUSSION
A unilateral 	change 	in 	terms 	and 	conditions 	of 	employment
within the scope of 	representation is, 	absent a valid defense, 	a
per se refusal 	to negotiate. 	(NLRB v. 	Katz 	(1962) 	369 U.S. 	736
[50 LRRM 2177]; 	Pajaro Valley Unified School District 	(1978) 	PERB
Decision No. 	51 	(Pajaro Valley).) 	To establish an unlawful
unilateral 	change, 	the 	charging party must 	demonstrate 	that:
(1) 	the employer breached or altered the parties' 	written
agreement 	or own established past practice; 	(2) 	such action was
taken without 	giving 	the 	exclusive 	representative 	notice 	or an
opportunity to bargain over the change; 	(3) 	the 	change 	is not
merely an 	isolated breach of 	the 	contract, 	but 	amounts 	to a
change of policy 	(i.e., 	has 	a generalized effect 	or continuing
3
0
3

impact upon bargaining unit members' 	terms and conditions 	of
employment); 	and 	(4) 	the change in policy concerns a matter
within the 	scope 	of 	representation. 	(Grant 	Joint Union High
School District 	(1982) 	PERB Decision No. 	196; 	Pajaro Valley.)
In 	order 	to determine whether a unilateral 	change 	has
occurred, 	the 	charging party must 	establish 	that 	the 	employer
altered 	the 	status 	quo by departing 	from the 	terms 	of 	the
parties' 	contract 	or the established past practice. 	There 	is no
contract 	in existence between the parties 	in this 	case because
they have 	not 	completed negotiations 	for 	their 	initial 	contract.
Therefore, 	UPTE must 	show that 	the University departed 	from the
established past 	practice when 	it 	altered health 	care benefits
and 	the University's 	contribution 	rate.
In Pajaro Valley, 	the Board recognized the 	"dynamic 	status
quo" 	concept 	in 	federal 	labor law. 	That 	concept 	instructs 	that
change 	can be a normal 	part 	of 	the pattern of 	conduct between an
employer and a union. 	As 	the Board 	stated 	in Pajaro Valley:
While 	Kat
- z prohibits 	disturbance 	of 	the
status 	quo during negotiations, 	the NLRB has
held that 	the 	"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. 	The NLRB has 	held that 	changes
consistent 	with 	such a pattern are not
violations 	of 	the 	"status quo." 	[Citation,
p. 	6.]
In 	the 	health benefit 	plan open enrollment 	information
distributed to 	employees, 	the University explained that 	the
University's 	contribution 	toward 	an 	employee's 	selected 	health
plan 	is 	adjusted each year 	to 	reflect 	health plan changes 	and
4

costs 	assessed by the health 	carriers. 	To 	state 	a prima 	facie
case, 	UPTE must 	allege 	facts which demonstrate 	that 	the
University 	departed 	from 	the 	established practice 	when 	it 	made
the adjustments 	in health care benefits 	for 	the November 	1995
open enrollment.
The basis 	of UPTE's 	argument 	is 	that 	the University did not
have 	a policy 	concerning 	health benefits 	because 	the parties 	had
not 	completed negotiations 	for their 	first 	contract. 	UPTE argues
that, 	in fact, 	the University made a proposal at 	the bargaining
table 	to permit 	it 	to make 	these annual 	adjustments
to 	the health benefits. 	UPTE 	contends 	that 	health benefits 	are
a mandatory 	subject 	of bargaining and until 	negotiations 	for a
new contract 	are 	completed, 	the University may not 	alter health
benefits.
The Board has held, 	however, 	that an employer, 	by its
negotiating conduct, 	does not 	relinquish its 	right 	to act 	in
accordance with the 	established past practice. 	(Modesto 	City
Schools 	(1983) 	PERB Decision No. 	347.) 	While the University must
continue 	to negotiate with UPTE 	over 	the mandatory 	subject 	of
health benefits, 	it may act 	in accordance with 	its past practice
of 	adjusting 	health benefits 	until 	the parties 	have 	completed
negotiations 	for 	their 	first 	contract 	or 	they have 	completed
impasse procedures. 	UPTE has 	failed to allege 	facts which
demonstrate 	that 	the University's 	actions 	in adjusting health
care benefits 	and 	the University's 	contribution 	rate 	were
55

contrary to the established past practice. 	Accordingly, 	this
argument 	is without merit.
UPTE 	also 	complains 	that 	it was 	not 	afforded a 	fair
opportunity 	to amend 	its 	charge. 	After 	receiving 	the Board
agent's 	dismissal 	letter, 	it wrote 	to the Board agent 	asking her
to withdraw the 	dismissal 	of 	the 	charge and permit 	it 	to 	file an
amended 	charge.
The warning 	letter 	sent 	to UPTE prior 	to 	the 	issuance 	of 	the
dismissal 	letter 	clearly 	states 	that 	if 	the 	charging party notes
any deficiencies, 	it must 	file 	an amended 	charge by a 	specified
date. 	UPTE 	responded by sending a 	letter to 	the Board agent
prior 	to 	the 	specified deadline which stated 	in part, 	"we 	do not
believe 	an amended 	charge 	is 	warranted or necessary and we 	ask
that 	you proceed 	immediately with 	the 	issuance 	of 	a 	Complaint."
UPTE provides 	no 	explanation on appeal 	for 	its 	assertion
that 	it 	did not 	have 	a 	fair opportunity to amend 	its 	charge.
Accordingly, 	this argument 	is 	rejected.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CE-445-H 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Garcia 	joined 	in 	this 	Decision.
66

STATE OF CALIFORNIA 	. 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
May 28, 	1996
James E. 	Eggleston
Eggleston, 	Siegel 	& LeWitter
1330 Broadway, 	Suite 1700
Oakland, 	CA 	94612
Re: 	DISMISSAL 	OF UNFAIR PRACTICE 	CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
University and Professional 	Employees, 	CWA Local 	9119 v. 	The
Regents 	of 	the 	University 	of 	California
Unfair Practice 	Charge No. 	SF-CE-445-H
Dear Mr. 	Eggleston:
The above-referenced unfair practice 	charge, 	filed February 27,
1996, 	alleges 	that The Regents 	of 	the University of 	California
(University) 	unilaterally 	changed 	the 	health care benefits 	policy
without 	giving 	the 	University 	and 	Professional 	Employees 	(UPTE)
an opportunity 	to bargain over 	the 	changes. 	This 	conduct 	is
alleged to violate Government Code sections 3571(a), 	(b) 	and 	(c)
of 	the Higher Education Employer-Employee Relations Act 	(HEERA).
I 	indicated 	to you, 	in my attached letter dated May 	14, 	1996,
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 May
21, 	1996, 	the charge would be dismissed.
I 	did not 	receive 	either an amended 	charge 	or a 	request 	for
withdrawal. 	I am, 	however, 	in receipt of your letter dated May
20, 	1996, 	which states 	in part, 	"we do not believe an amended
charge 	is 	warranted 	or necessary and we 	ask 	that 	you proceed
immediately with 	the 	issuance 	of 	a 	Complaint 	. . . "
The May 20, 	199 6 	letter asserts 	that pending the outcome of
negotiations, 	the University may not 	alter the health 	care
benefits 	provided by any of 	its 	contracted 	insurance 	carriers,
nor may 	the 	University alter 	the 	cost 	of 	each health plan 	it
provides. 	UPTE 	contends 	that 	such Open Enrollment modifications
are unilateral 	changes 	in violation of 	the EERA.
f 	,---
,
"
_-_---

Dismissal 	Letter
SF-CE-445-H
May 28, 199 6
Page 2
The mere 	changing of benefits or cost does not establish a
unilateral 	change. 	Whether a unilateral 	change has 	occurred is
measured by comparing the action taken to the status quo
established by a contract or past practice. 	(California State
University 	(1995) 	PERB Decision. No. 	1093.) 	As no contract
exists, 	Charging Party must demonstrate that the University has
altered its past practice with regard to health care benefits and
costs.
In Pajaro Valley Unified School District 	(1978) 	PERB Decision No.
51, 	PERB recognized the 	"dynamic status quo" 	concept 	in federal
labor law. 	That 	concept 	instructs 	that 	change can be a normal
part of the pattern of conduct between an employer and a union.
As the Board noted in Pajaro:
While Katz prohibits disturbance of the status
quo during negotiations, 	the NLRB has held that
the 	"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. 	The NLRB has
held that 	changes 	consistent with such a pattern
are not violations of the 	"status quo."
The University has a long standing policy on contributions 	to
health care premiums. 	That policy clearly provides 	for open
enrollment 	on a yearly basis and states 	that 	the University's
contributions will be near or equal 	to the premiums of the
lowest-costing HMO. 	Charging Party fails 	to provide any evidence
of a contrary written policy or past practice. 	Any changes made
in the health benefits provided to University employees and any
modifications 	in costs, 	are consistent with the University's past
practice of 	reevaluating health care costs and benefits 	on a
yearly basis.
I am therefore dismissing the 	charge based on the 	facts 	and
reasons contained herein and in my May 14, 	1996 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
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	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 p.m.) 	or sent by telegraph,
certified or Express 	United States mail postmarked no 	later

Dismissal 	Letter
SF-CE-445-H
May 28, 	1996
Page 3
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil Procedure section 1013 shall apply.
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 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 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 Cal. 	Code of Regs., 	tit. 	8,
sec. 	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 	(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. 	(Cal. Code of Regs., tit. 8, 	sec. 32132.)

Dismissal Letter
SF-CE-445-H
May 28, 199 6
Page 4
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
Deputy General 	Counsel
By Kristin L. 	Rosi
Regional Attorney
Attachment
cc:

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
May 14, 199 6
James E. 	Eggleston
1330 Broadway, 	Suite 1700
Oakland, 	CA 	94612
Re: 	WARNING LETTER
University and Professional Employees. 	CWA Local 9119 v. 	The
Regents of 	the University of California
Unfair Practice Charge No. 	SF-CE-445-H
Dear Mr. Eggleston:
The above-referenced unfair practice charge, 	filed February 27,
1996, 	alleges that The Regents of the University of California
(University) 	unilaterally changed the health care benefits policy
without giving the University and Professional 	Employees 	(UPTE)
an opportunity to bargain over the changes. 	This 	conduct 	is
alleged to violate Government Code sections 3571(a), 	(b) 	and 	(c)
of the Higher Education Employer-Employee Relations Act 	(HEERA).
Investigation of 	the 	charge revealed the following. 	The
University offers a 	comprehensive health benefits package to its
employees. 	The University's health benefits package offers, 	on
an annual basis, 	the opportunity to choose between health
maintenance organizations 	(HMO's), fee-for-service plans, and
point-of-service plans. 	During 1995, 	employees could choose from
among six HMO's, 	two fee-for-service plans, 	and one point-of-
service plan.
Each November, 	the University holds an open enrollment period,
during which time employees have the option to choose which
health care plan to participate in. 	Employees may select a new
plan or remain with their current 	coverage.
On or about October 24, 	1995, 	UPTE was informed by the University
of 	the upcoming November open enrollment period. 	This 	letter
noted the proposed health benefit programs 	available 	to 	employees
during this 	enrollment period.
On or about October 27, 	1995, 	UPTE made a written demand on the
University to bargain over the proposed changes 	in health
benefits and the increased cost to employees.
_-_---

Warning Letter
SF-CE-445-H
May 14, 	1996
Page 2
On or about November 1, 	1995, 	the University opened enrollment
for health care benefit programs. 	Each employee was provided a
packet of 	information that described the open enrollment period
and process, 	and outlined the cost and benefit changes 	in each of
the programs provided. 	On page 6 of this packet, 	under the
heading 	"Employee's Monthly Cost," 	the University explained its
contribution to the health care premiums, 	as follows:
The maximum UC contributions are set 	close to
the price of the lowest cost HMO plan, 	which
varies from year to year. 	Your monthly cost is
based on the difference between the cost of your
plan and UC's maximum contributions. 	Your
medical plan cost will go up, 	down, 	or remain
the same as a result of these two changing
factors. 	. 	. 	. 	Generally, UC contributions are
set so that there is at least one HMO plan at
each major UC location with no cost to employees.
If you want one of the more expensive plans you
will need to pay the difference 	in premium. 	The
amount UC contributes 	is also subject to state
appropriation, 	which may change or be discontinued
in future years.
On or about November 30, 	1995, 	the University responded to UPTE's
demand for bargaining with a written refusal 	to bargain over
health care benefits 	changes. 	The University stated that 	it
considered the changes 	in health benefits and cost to be a matter
of the status quo, 	thus not requiring negotiations prior to
implementation. 	Additionally, 	the University noted that it does
not offer different health plans to different employee groups or
organizations.
Based on the facts stated above, 	the charge as presently written,
fails 	to state a prima facie violation of HEERA, for the reasons
stated below.
In determining whether a party has violated section 3571(c) 	of
HEERA, 	the 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 Dec. 	No. 	143.) 	Unilateral
changes are considered 	"per se" violations 	if certain criteria
are met. 	Those criteria are: 	(1) 	the employer implemented a
change in policy concerning a matter within the scope of
representation, 	and 	(2) 	the change was implemented before the
employer notified the exclusive 	representative and gave 	it an
opportunity to request negotiations. 	(Walnut Valley Unified

Warning Letter
SF-CE-445-H
May 14, 	1996
Page 3
School District 	(1981) 	PERB Dec. No. 	160; Grant Unified High
School District 	(1982) 	PERB Dec. No. 	196.)
On page 6 of the packet provided to UPTE and all employees, 	the
University outlines 	its policy on contributions 	to health care
premiums. 	The University clearly states that 	its 	contribution
will be near or equal to, 	the premiums of the lowest-costing HMO.
No evidence has been provided by UPTE to demonstrate that 	this 	is
a new policy or the revision of a prior policy. 	Nor has evidence
been provided that the University is 	failing to adhere to its
stated policy. 	Without such evidence, 	UPTE cannot establish that
the University has 	changed a policy within the scope of
representation.
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 which 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 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 May 21. 	1996. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3008.
Sincerely,
Kristin L. 	Rosi
Regional Attorney