State of California (Department of Forestry and Fire Protection) (California Department of Forestry Firefighters) (PERB 1260S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA DEPARTMENT OF 	FORESTRY
FIREFIGHTERS,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT OF
FORESTRY AND FIRE 	PROTECTION),
Respondent.
Case No. 	SA-CE-891-S
PERB Decision No. 	1260-S
April 	20, 	1998
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Appearances; 	Carroll, 	Burdick & McDonough by Ronald Yank and
Kassi Berg-Beck, 	Attorneys, 	for California Department of 	Forestry
Firefighters; 	State of California 	(Department of 	Personnel
Administration) 	by Robert K. 	Roskoph, 	Labor Relations Counsel,
for State 	of 	California 	(Department 	of 	Forestry and Fire
Protection).
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on exceptions 	filed on
behalf 	of 	the 	State 	of California 	(Department 	of 	Forestry and
Fire 	Protection) 	by the 	State 	of 	California 	(Department 	of
Personnel Administration) 	(State or DPA), 	and by the California
Department 	of 	Forestry Firefighters 	(CDFF) 	to a proposed decision
by a 	PERB administrative 	law judge 	(ALJ). 	The ALJ 	found that 	the
State violated section 3519(a), 	(b) 	and 	(c) 	of the Ralph C. 	Dills
Act 	(Dills Act)1 when it unilaterally changed the vision care
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	references herein are 	to
the Government Code. 	Section 3519 	states, 	in pertinent part:
It 	shall 	be unlawful 	for the 	state 	to do any
of 	the 	following:

benefits 	of 	employees 	represented by 	CDFF without 	providing 	CDFF
with notice 	or the 	opportunity to meet 	and confer over the
change.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the unfair practice 	charge and complaint, 	the hearing
transcript, 	the proposed decision and the 	filings 	of 	the
parties.2 The Board 	concludes 	that 	CDFF has 	failed 	to
demonstrate 	that 	there has 	been a 	significant 	impact 	on 	the
actual 	vision 	care 	benefits 	received by employees 	as 	a 	result 	of
the State's action. 	The Board hereby reverses 	the ALJ's proposed
decision and 	dismisses 	the 	unfair practice 	charge 	and 	complaint
in accordance with 	the 	following discussion.
(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 meet and confer in
good 	faith with 	a 	recognized 	employee
organization.
2CDFF argues 	that 	the 	State's 	exceptions were untimely
filed. 	Following the granting of an extension of 	time, 	the 	PERB
appeals assistant 	set October 6, 	1997, 	as 	the 	final 	filing date
for exceptions 	in this 	case. 	Applying the 	five-day extension
provided by PERB Regulation 32130(c) 	(PERB regs, 	are 	codified at
Cal. 	Code Regs., 	tit. 	8, 	sec. 	31001 et seq.) 	and established PERB
practice and policy, 	the appeals 	assistant 	correctly accepted
both CDFF's exceptions, 	filed on October 7, 	1997, 	and the State's
exceptions, 	filed on October 10, 	1997, 	as timely filed. 	CDFF's
argument 	is 	rejected.
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BACKGROUND
CDFF 	is 	the 	exclusive 	representative 	of 	employees within
State Bargaining Unit 	8. 	For approximately 10 years, 	Unit 	8
employees 	have 	been provided with vision 	care 	benefits 	pursuant
to 	their 	collective bargaining agreement 	(CBA) 	with the State.
The 	State provides 	the benefits 	through a 	contact 	with a private
vision care plan. 	The vision care provision of 	the parties'
August 15, 	1987 through June 30, 	1988, 	CBA states, 	in pertinent
part:
The 	employer agrees 	to provide 	a vision
service plan to 	eligible 	employees 	and their
dependents. 	Eligible employees are defined
as: 	(a) 	All permanent employees appointed
half-time or more 	for over six months; 	(b)
Permanent 	Intermittent 	employees 	who work a
minimum of 	480 	hours 	in each six-month period
ending each June 30 or December 31; 	or, 	(c)
Limited Term or TAU appointees 	with prior
continuous permanent 	status.
The vision 	service plan 	shall 	be 	the 	State's
plan and 	shall 	provide 	for an annual 	eye
examination, 	frames, 	and lenses. 	There will
be 	a 	$10.00 	employee 	co-payment 	for eye
examinations 	and a 	$25.00 	employee 	co-payment
for 	frames 	and lenses.
The vision care provision of 	the parties' 	October 1, 	1988 	through
June 30, 	1991, 	CBA states, 	in pertinent part:
The 	employer agrees 	to provide a vision
service plan to 	eligible 	employees 	and
dependents. 	The vision service plan provided
by 	the 	State under 	this 	Section 	shall 	contain
the 	same benefits 	and services 	as 	those 	in
effect on June 30, 	1988, 	with the same
employee co-payments 	($10, 	$25), 	and the
employer shall pay 100% 	of 	the premium.
The vision care provision of 	the parties' 	1992-95 	CBA states, 	in
pertinent part:
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The 	employer agrees 	to provide a vision
service plan to 	eligible 	employees 	and
dependents. 	The vision service plan provided
by 	the 	State under 	this 	section 	shall 	contain
the 	same benefits 	and services 	as 	those 	in
effect on June 30, 	1988, 	with the same
employee co-payments 	($10, 	$25) 	for the
examination and materials, 	and the employer
shall 	pay 	100% 	of 	the premium per month per
eligible 	employee 	and dependents 	when
enrolled 	in the 	State-sponsored plan.
The parties' 	1992-95 	CBA expired on June 30, 	1995. 	At the
time of 	the alleged unlawful 	conduct 	in this 	case, 	the parties
were 	negotiating 	over a 	successor CBA. 	An employer must maintain
certain 	terms 	and 	conditions 	of 	employment 	embodied 	in an expired
agreement while 	the parties 	are 	engaged 	in bargaining 	over a
successor agreement. 	(State of 	California 	(Department 	of
Forestry and Fire Protection 	(1993) 	PERB Decision No. 	999-S.) 	It
is 	undisputed 	that 	the 	State was 	obligated 	to maintain 	the vision
care benefits 	embodied in the parties' 	1992-95 	CBA at 	the 	time of
the alleged unlawful 	conduct 	in this 	case.
On June 	5, 	1995, 	DPA notified CDFF that 	it had posted an
intent 	to award the new contract 	to provide Unit 	8 	employees with
vision care benefits 	to Vision Service 	Plan 	(VSP). 	The 	contract
in effect at 	that 	time, 	which also was with VSP, 	was 	scheduled to
expire on July 31, 	1995. 	DPA advised that a contract protest had
been 	filed, 	and 	that DPA would 	seek an 	extension of 	the 	existing
VSP 	contract 	if 	the protest was 	not 	resolved quickly. 	The new
contract was 	for VSP's Regional Network Plan 	(RNP), 	which
contained 	some provisions 	different 	from those 	of 	the VSP plan
provided under 	the 	expiring 	contract. 	DPA provided CDFF with no
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information 	concerning 	the 	RNP 	or any difference 	in 	the
provisions 	of 	the 	expiring and the new VSP 	contracts. 	The
protest 	was 	resolved and 	the 	new VSP 	contract 	went 	into 	effect 	on
August 1, 	1995.
The parties 	stipulated that 	charging party exhibit 	8
(CP 8) 	reflects 	an accurate 	summary of 	the 	components 	of 	the
prior VSP plan and the new VSP plan. 	CP 	8 	is 	entitled 	"State 	of
California 	Plan Design." 	The 	document 	indicates 	that plan
components 	involving the 	employee deductible, 	the nonmember
schedule, 	the coverage for examinations and lenses, 	including
contact 	lenses, 	and the 	tints 	and photochromic 	covered options
are 	identical 	in the prior and new VSP plans. 	The 	document 	also
presents 	several 	apparent differences 	in the plans, 	including:
A reduction 	in 	the 	premium paid by 	the 	State
from $11.94 	to $8.98;
a 	reduction 	in 	the number 	of 	California
providers 	participating 	in 	the plan 	from
4,200 	to 	"about 	75-85%" 	of 	that number;
a 	change 	in 	the benefit 	for 	frames 	from 	"$30
wholesale, 	control on extras" 	to 	"$30
wholesale 	or $75 	retail allowance";
a 	change 	in 	the benefit 	for 	cosmetic 	extras
from 	"Dispensed at 	a 	controlled 	cost" 	to
"Usual 	and 	customary 	charged";
a 	change 	in the 	"Frame 	Coverage" 	from
"Wholesale Difference x 2" 	to U and C 	[usual
and customary] 	minus $75";
a 	change 	in 	"Doctor Fees" 	from 	"Standard
Discounted Fee 	for Service" 	to 	"RNP 	fixed
fees 	in California";
a 	change 	in 	"Doctor 	Fees 	for Covered Options"
from 	"Discounted" 	to 	"No service 	fee, 	only
for material";
5
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a 	change 	in the 	"Lab Agreement" 	from 	"65 	labs
in California" 	to 	"Limited number of 	CA
Labs."
Charging party exhibit 	3 	(CP 3) 	is a copy of a pamphlet
entitled 	"Vision Care 	Plan Disclosure 	Statement 	and Evidence 	of
Coverage." 	The pamphlet 	describes 	the various 	components 	of 	the
VSP plan in effect on June 30, 	1988, 	the date specifically
referenced in the parties' 	1992-95 	CBA. 	Charging party exhibit 2
(CP 2) 	is a copy of 	a pamphlet with the same title which
describes 	the various 	components 	of 	the 	new VSP plan effective
August 	1, 	1995. 	The pamphlets 	contain very similar or identical
descriptions of employee deductibles, 	eligibility, 	plan and
service 	frequencies 	and benefits 	for vision examinations 	and
lenses. 	With regard to the benefit 	for frames, 	CP 3 	describes
the coverage under the June 30, 	1988, 	VSP plan as 	follows:
VSP 	reserves 	the 	right 	to 	limit 	the 	cost 	of
frames 	provided by its 	Panel 	Doctors 	under
the plan. 	The 	limit 	shall be published
periodically by VSP 	to 	its 	Panel 	Doctors 	and
will 	be 	set 	at 	a level 	to 	cover the majority
of 	frames 	in common use.
CP 2 	describes 	the 	coverage 	for 	frames under the new VSP plan as
follows:
Participating member doctors 	can 	charge 	their
usual 	and 	customary fees 	for 	frames.
Participating member doctors 	are 	required 	to
maintain a 	selection of 	frames 	which are
fully covered under the your 	[sic] 	VSP plan.
Both CP 2 	and CP 	3 	include 	sections which describe benefit
limitations. 	Under the June 30, 	1988, 	VSP plan, 	CP 3 states:
This vision 	service plan 	is 	designed to 	cover
visual 	needs 	rather 	than 	cosmetic materials.
If you 	select 	any of 	the 	following extras,
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the plan will 	pay the basic 	cost 	of 	the
allowed lenses, 	and the 	covered person will
pay 	the additional 	laboratory 	cost 	for 	the
extras plus a modest 	additional 	fee.
1. 	Blended lenses
2. 	Contact 	lenses
3. 	Oversize 	lenses
4. 	Progressive multifocal 	lenses
5. 	The 	coating of a lens 	or lenses
6. 	The 	laminating of 	a 	lens 	or lenses
7. 	A frame 	that 	costs more 	than the plan allowance
CP 	2 	describes 	benefit 	limitations 	under 	the new VSP plan as
follows:
Your vision plan 	is 	designed 	to 	cover visual
needs 	rather than cosmetic materials. 	If you
select any of 	the 	following extras, 	the plan
will 	pay 	the basic 	cost 	of 	the 	allowed 	lenses
and you will be 	required 	to pay any
additional 	costs 	associated with 	the 	extras:
1. 	Blended lenses
2. 	Contact 	lenses 	(except as 	noted on page 	6)
3. 	Oversize 	lenses
4. 	Progressive multifocal 	lenses
5. 	Coated or 	laminated lenses
6. 	A frame 	that 	costs more 	than the plan allowance
7. 	UV protected 	lenses
8. 	Other optional 	cosmetic processes
On June 7, 	1996, 	Larry Crabtree 	(Crabtree), 	CDFF's statewide
rank and 	file 	representative, 	had a regular visit with his 	eye
doctor. 	Crabtree discussed the new VSP plan with the doctor, 	and
purchased an optional 	lens 	coating 	for 	$53. 	He 	testified that
the 	lens 	coating would have 	cost 	$44 before 	the 	change 	to 	the new
VSP plan.
Dennis Williams 	(Williams) 	purchased one pair of glasses 	for
$73 	in January 1997. 	He 	testified that 	he purchased two pairs 	of
glasses 	for 	"sixty-something dollars" 	in January 1995. 	He
further 	testified 	that when he 	inquired as 	to why 	the 	one pair 	of
7

glasses 	cost 	so much, 	he was 	told that 	it was 	due 	to an increase
in the deductible.
On October 9, 	1996, 	CDFF 	filed an unfair practice charge
alleging that 	the State violated the Dills Act 	on August 	1, 	1995,
by unilaterally 	changing 	the vision 	care 	benefits 	provided 	to
Unit 	8 	employees. 	CDFF asserts 	that 	the new VSP plan has
resulted in increased costs 	to employees 	for lenses, 	frames and
related vision 	care 	services. 	CDFF 	seeks 	a 	remedy ordering 	the
State 	to 	establish a 	trust 	fund 	for 	the benefit 	of 	affected
employees using 	the 	savings 	the State achieved as 	a 	result 	of 	the
unlawful 	unilateral 	change 	to 	the new VSP plan. 	CDFF also asks
PERB 	to order the 	State 	to direct VSP 	to notify providers,
including 	those who no 	longer provide 	services 	under 	the 	new VSP
plan, 	"that 	the old rate per employee has been reinstated."
On November 5, 	1996, 	the PERB Office of the General 	Counsel
issued a 	complaint 	alleging 	that 	the 	State violated Dills Act
section 3519(a), 	(b) 	and 	(c) 	when it unilaterally changed to the
new VSP plan, 	resulting 	in increased employee 	costs 	for vision
care and a decrease 	in the number of vision care providers
available.
A PERB-conducted 	settlement 	conference 	did not 	resolve 	the
dispute. 	A formal 	hearing before an ALJ was held on April 	21,
1997. 	On August 25, 	1997, 	the ALJ issued a proposed decision
finding 	that 	the 	State violated 	the Dills Act by unilaterally
changing 	the vision care benefits 	of 	employees 	in Unit 	8.
88

DISCUSSION
Statute 	of 	Limitations 	Issue
Under Dills Act 	section 3514.5,3 PERB may not 	issue a
complaint 	based 	on 	alleged 	conduct 	which occurred more 	than 	six
months prior to 	the 	filing of 	the unfair practice 	charge. 	CDFF
filed the 	instant 	charge on October 9, 	1996.
In a unilateral 	change 	case, 	the 	statute of 	limitations
contained 	in 	section 	3514.5 	begins 	to 	run when the 	charging party
has 	actual 	or constructive notice 	of 	the 	respondent's 	clear
intent 	to 	implement 	the alleged change. 	(The Regents 	of 	the
University of California 	(1990) 	PERB Decision No. 	826-H.) 	Actual
or 	constructive 	notice 	occurs 	when 	the 	exclusive 	representative
has been clearly informed of 	the proposed 	change. 	(Marin
Community College District 	(1995) 	PERB Decision No. 	1092.)
DPA asserts 	that CDFF's October 9, 	1996, 	charge 	is untimely,
noting 	that 	the 	PERB 	complaint 	in 	this 	case 	specifically
references August 	1, 	1995, 	as 	the date the 	change 	in vision care
benefits 	occurred. 	Further, 	DPA argues 	that CDFF had notice of
the 	impending change on June 	5, 	1995, 	when DPA advised CDFF that
it 	had posted a notice of 	intent 	to award the new VSP 	contract.
3Dills Act section 3514.5 	states, 	in pertinent part:
(a) 	Any employee, 	employee organization, 	or
employer shall 	have 	the 	right 	to 	file an
unfair practice 	charge, 	except 	that 	the board
shall 	not do either of 	the 	following: 	(1)
issue a 	complaint 	in respect 	of 	any charge
based upon 	an 	alleged unfair practice
occurring more 	than six months prior 	to 	the
filing of 	the 	charge.
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DPA's advisory to CDFF on June 5, 	1995, 	of 	its 	intent 	to
award 	the new VSP 	contract 	did not 	provide 	CDFF with actual 	or
constructive notice 	of 	the alleged 	change 	in vision 	care
benefits. 	DPA provided CDFF with no 	information 	concerning 	the
specific aspects 	of 	the new VSP plan, 	or any information
comparing the prior and new VSP plans. 	It was 	not possible 	for
CDFF 	to discern 	from the 	June 	5 	notification that 	the 	new VSP
plan 	involved 	the 	changes 	which 	form the basis 	of 	the 	instant
unfair practice charge. 	It was not until June 	1996, 	when
Crabtree visited his eye doctor, 	that 	CDFF 	first became aware of
the 	possibility 	that 	vision 	care benefits 	had been 	changed under
the new VSP 	contract. 	CDFF 	filed 	its unfair practice 	charge 	on
October 9, 	1996, 	less 	than six months after it became aware of
the alleged change. 	Therefore, 	CDFF's unfair practice 	charge was
timely 	filed.
Unilateral 	Change 	Issue
In order to prevail 	on a unilateral 	change 	charge, 	the
charging party must 	establish that 	the 	employer, 	without
providing 	the 	exclusive 	representative with notice 	or 	the
opportunity to bargain, 	breached or altered the parties' 	written
agreement 	or 	established past 	practice 	concerning 	a matter within
the 	scope of 	representation, 	and that 	the 	change has a
generalized effect 	or 	continuing 	impact 	on the 	terms 	and
conditions 	of 	employment 	of bargaining unit members. 	(Pajaro
Valley Unified School District 	(1978) 	PERB Decision No. 	51
10

(Pajaro Valley); 	Grant Joint Union High School District 	(1982)
PERB Decision No. 	196.)
The 	Board 	recently decided another 	case 	in which 	it 	was
alleged 	that 	the 	State's 	contract 	to provide vision 	care benefits
through 	the 	new VSP plan 	constituted an unlawful 	unilateral
change. 	In State of 	California 	(Department 	of 	Personnel
Administration) 	(1998) 	PERB Decision No. 	1244-S 	(DPA 	(CAPS)), 	the
Board noted that 	cases 	involving 	changes 	in health benefit 	plans
and health benefit 	plan administrators present 	a unique 	type 	of
unilateral 	change allegation for several 	reasons. 	While health
benefits 	are 	fundamental 	elements 	of 	the 	terms 	and conditions 	of
employment, 	the actual benefits 	employees 	receive are 	typically
provided under a 	contract 	between 	the 	employer and a 	health
benefit plan. 	Health benefit plans are dynamic 	creatures, 	and
minor adjustments 	in 	the nature 	and variety of 	services 	and
benefits 	provided 	to 	employees 	under a health plan are 	a normal,
if not constant, 	occurrence. 	Also, 	while different health
benefit plans 	often provide 	similar arrays 	of actual 	services 	and
benefits, 	they also 	typically 	include 	some variations 	since no
two plans are 	likely to be 	identical. 	In recognition of 	this,
health benefit provisions of CBAs 	rarely, 	if ever, 	contain a
comprehensive 	list 	of 	the benefits 	employees are 	to receive, 	and
often do 	not 	specify a particular health benefit 	plan to be
provided.
In considering alleged unilateral 	changes 	in this area, 	the
Board has 	attempted 	to balance 	the bargaining rights 	and
11

obligations 	of 	parties who have 	entered 	into general 	health
benefit 	CBA provisions with 	the 	need 	to avoid the 	disruption
which would 	result 	from requiring 	negotiations 	over 	each and
every adjustment 	in 	services 	or benefits 	offered under a health
benefit plan. 	As a result, 	the Board has held that a change 	in
health benefit plans 	or administrators 	is 	negotiable 	only if 	the
change has 	a material 	or 	significant 	effect 	or 	impact 	on 	the
actual 	benefits 	received by employees. 	(Oakland Unified School
District 	(1980) 	PERB Decision No. 	126; 	affd. 	Oakland Unified
School Dist, 	v. 	Public Employment Relations Bd. 	(1981)
120 Cal.App.3d 1007, 	1012 	[175 Cal.Rptr. 	105]; 	Palo Verde Unified
School District 	(1983) 	PERB Decision No. 	321; 	Trinidad Union
Elementary School 	District/Peninsula Union School 	District 	(1987)
PERB Decision No. 	629 	(Trinidad/Peninsula); 	Savanna School
District 	(1988) 	PERB Decision No. 	671; 	Oakland Unified School
District 	(1994) 	PERB Decision No. 	1045 	(Oakland USD).) 	It 	is not
enough 	to 	theorize 	or speculate 	that 	a 	change 	could 	impact
employees. 	The actual 	effect 	on employees, 	caused by the health
benefit-related change, 	must be shown. 	(Trinidad/Peninsula.) 	In
Oakland USD, 	the 	Board concluded 	that 	an unlawful 	unilateral
change had occurred since 	it was 	clear that a 	change 	in health
plan providers 	had 	resulted 	in a material 	and 	significant 	impact
on the 	employee 	cost 	of 	the actual 	health benefits 	they received.
As 	in DPA 	(CAPS). 	the State here points 	to Yuba Community
College District 	(1990) 	PERB Decision No. 	855 	(Yuba CCD) 	in
arguing that 	the 	status 	quo 	is 	defined by the negotiated language
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of 	the 	expired CBA, 	which 	clearly lists 	specific vision care
benefits 	to be 	received by employees. 	Since 	these benefits
continue 	to be provided under the new VSP plan, 	the 	State asserts
that 	the 	status 	quo has 	been maintained and no unilateral 	change
has 	occurred.
Yuba 	CCD 	is 	clearly distinguishable 	from the 	case 	at 	bar.
In that 	case, 	the parties' 	contract 	specified that health benefit
coverage 	would be 	provided 	through a 	specific 	Blue 	Cross
insurance plan. 	During 	the 	time 	that 	the plan had been specified
in the 	contract, 	several 	uncontested changes 	in benefits 	and plan
provisions 	had been 	implemented by Blue 	Cross. 	The 	Board
concluded that 	the 	status quo, 	therefore, 	included a regular and
consistent 	pattern of 	changes 	in 	the 	specified Blue 	Cross 	health
plan. 	(Pajaro Valley.) 	In this case, 	there is no evidence
suggesting 	that 	there 	has 	been a 	regular and consistent 	pattern
of 	changes 	to 	the benefits provided to employees pursuant 	to 	the
vision care provision of 	the parties' 	CBA.
As 	is 	typical with health benefit provisions, 	in this 	case
the 	actual 	vision 	care benefits 	received by employees 	pursuant 	to
the 	contract 	include 	services 	and benefits 	not 	specifically
listed 	in the 	current 	or 	former CBAs. 	This array of actual
benefits 	received by employees 	represents 	the 	status 	quo which
the 	State 	is bound to maintain. 	Any unilateral 	change 	resulting
in a significant 	impact 	on these actual benefits, 	or their cost
to employees, 	may violate the Dills Act, 	even though the benefits
13

impacted have 	never been 	specifically 	listed 	in any of 	the
parties' CBAs.
It 	is 	clear that 	the 	State 	entered 	into a new contract with
VSP to provide vision care benefits, 	a subject within the 	scope
of 	representation. 	It 	is also clear that 	the State did so
without 	providing 	CDFF with notice 	or 	the 	opportunity 	to
negotiate. 	The question presented by this 	case 	is whether the
change 	to 	the 	new VSP plan had a 	significant 	impact 	on the actual
vision care benefits 	received by employees, 	or the 	cost 	of 	those
benefits 	to employees. 	To prevail 	in this 	case, 	CDFF must
demonstrate by a preponderance 	of 	the 	evidence4 that 	such a
significant 	impact 	resulted 	from the 	change 	to 	the new VSP plan.
To meet 	this burden, 	CDFF presents 	evidence 	in the 	form of
several 	exhibits 	and the 	testimony of various witnesses. 	CDFF
refers 	to CP 	8 	as a 	"smoking gun" 	exhibit. 	According to CP 	8,
the 	new VSP plan 	is 	different 	from the prior plan 	in 	several
ways. 	Among the differences 	are a 	reduction in the premium paid
by the State, 	a 	reduction in the number of participating
providers, 	a change 	in doctor fees, 	and a reduction in the number
of 	laboratories 	participating 	in the plan. 	CDFF asserts 	that
these 	changes 	have an 	impact 	on 	the vision 	care benefits 	received
by employees, 	but 	speculation concerning 	the 	impact 	of 	these
features 	of 	the new VSP plan 	is 	insufficient 	to establish that 	a
4PERB Regulation 32178 	states:
The 	charging party 	shall 	prove 	the 	complaint
by a preponderance 	of 	the 	evidence 	in order
to prevail.
14

change has occurred. 	(Trinidad/Peninsula: 	DPA 	(CAPS).) 	CDFF
offers a declaration from Arthur E. 	Smith 	(Smith) 	indicating that
he was 	forced 	to 	change his vision 	care provider because 	his
former ophthalmologist 	did not 	accept 	the 	new VSP plan. 	Smith
indicates 	that he 	found another provider, 	but 	he asserts 	that 	the
loss 	of 	the 	long relationship with his 	former provider, 	who
"frequently did extra things" 	for Smith and his 	family,
represents a 	change 	in the 	level 	of his vision care benefits.
The 	accessibility of 	health benefits 	to employees 	is 	an
important 	feature of those benefits. 	However, 	the accessibility
of benefits 	is 	determined by 	the 	availability of 	the benefits
themselves, 	rather than by the availability of an 	individual
provider 	or health plan 	through which employees 	receive 	the
benefits, 	unless 	the parties 	have 	specified that provider or plan
in their agreement. 	It appears 	that 	the vision care benefits
provided under 	the prior VSP plan 	continue 	to be 	readily
accessible 	to Smith under the new VSP plan, 	albeit 	through a
provider he 	likes 	less 	than his 	former ophthalmologist.
Therefore, 	Smith's declaration does not demonstrate 	that 	there
has 	been a 	significant 	impact 	on actual vision care benefits 	as 	a
result 	of 	the reduction in the number of providers under the new
VSP plan.
CDFF has 	presented no 	evidence 	from which 	it 	can be
concluded that 	the 	reduction 	in the number of providers 	and
laboratories, 	the 	change 	in doctor fees, 	and the reduction in the
premium paid by 	the 	State 	under 	the 	new VSP plan 	resulted 	in a
15

significant 	impact 	on actual vision care benefits, 	or their cost
to employees.
CDFF also argues 	that 	CP 	8 	demonstrates 	that 	coverage 	for
eyeglass 	frames 	has 	changed 	significantly under the 	new VSP plan.
CP 	8 	describes 	frame benefits under the prior plan as 	"$30
wholesale, 	control 	on extras," 	and as 	"$30 wholesale or $75
retail allowance" 	under the new VSP plan. 	However, 	this
difference 	in the description of 	frame benefits 	does 	not 	in and
of 	itself 	demonstrate 	that 	there 	has 	been a 	resulting 	significant
impact 	on actual 	benefits 	received by employees. 	Crabtree
testified 	that 	he 	had been 	told that 	the 	"control 	on extras"
referenced 	in CP 	8 	under 	the prior VSP plan was 	actually a 	cap 	on
the 	retail price providers 	could charge 	for frames 	- 	a cap of
250 percent 	of 	the wholesale price. 	Crabtree 	testified that
under 	the 	new VSP plan the 	cap has 	been eliminated and 	there 	is
no maximum on what 	a provider may 	charge 	for frames. 	However,
Crabtree was 	unable 	to offer any support 	for his 	claim that
"control 	on extras" 	actually defines 	a precise 	cap on the 	retail
pricing of 	frames, 	so that assertion is 	rejected.
Neither the prior or new contracts between 	the 	State and
VSP, 	nor 	the agreements between VSP and 	its participating
providers, 	were 	introduced into the record, 	so it 	is not possible
to 	review their 	specific provisions 	relating 	to 	the 	retail
pricing of 	frames. 	CP 3 	and CP 2 	both make 	reference 	to frame
pricing. 	CP 3, 	describing the VSP plan in effect 	on
16

June 30, 	1998, 	indicates 	that 	frame costs will be limited 	"to
cover the majority of 	frames 	in common use." 	CP 2, 	describing
the new VSP plan, 	indicates 	that providers 	"are 	required to
maintain a 	selection of 	frames 	which are 	fully 	covered under 	the
your 	[sic] 	VSP plan." 	It 	can be 	concluded from these exhibits
that 	there 	continues 	to be a 	cap under the new VSP plan on the
retail prices providers 	can charge 	for frames, 	at 	least with
respect 	to 	"a selection of 	frames." 	It 	cannot be 	concluded from
these 	exhibits 	that 	there 	has 	been a 	change under 	the new VSP
plan 	in 	the 	cap on retail 	frame prices which has 	resulted 	in a
significant 	impact 	on employee 	costs 	of 	frames.
CP 	8 	also 	indicates a change 	in 	"frame 	coverage" 	from
"Wholesale Difference X 2" 	under the prior plan, 	to 	"U and C
minus 	$75" 	under the new VSP plan. 	The 	relationship of 	"frame
coverage" 	to 	"frame benefits" 	described in CP 8 	is unclear, 	as 	is
the meaning of 	"wholesale difference." 	CDFF offers 	no
explanation of 	the meaning 	of 	these 	descriptions 	and no 	evidence
concerning the effects of any change, 	so no 	finding of a
resulting, 	significant 	impact 	on actual 	benefits 	received by
employees 	can be made based on these 	descriptions.
A review of 	this 	evidence 	relating 	to 	employee 	frame 	costs
leads 	to 	the 	conclusion 	that 	benefits 	under 	the 	new VSP plan are
very 	similar but 	not 	identical 	to benefits 	under 	the prior plan.
However, 	it 	cannot be 	concluded 	from this 	evidence 	that 	the
employee 	cost 	of 	frames 	has 	been 	impacted significantly by the
17

change 	to 	the new VSP plan. 	Consequently, 	CDFF's assertion to
the 	contrary 	is 	rejected.
CDFF also points 	to a 	change 	in employee 	costs 	for 	cosmetic
extras under the new VSP plan. 	CP 	8 	indicates 	that 	cosmetic
extras 	were 	"dispensed at 	a 	controlled 	cost" 	under 	the prior VSP
plan, 	while under the new VSP plan 	"usual and customary" 	is
charged. 	Again, 	CDFF offers no explanation of 	the meaning of
"controlled cost" 	or 	its 	relationship 	to a 	"usual 	and customary"
charge, 	so 	it would be speculative 	to reach a 	finding of actual
impact 	on the 	cost 	of benefits 	based solely on this 	language.
Further, 	other exhibits 	suggest 	that a change 	in cosmetic extras
costs 	would not 	significantly 	impact vision 	care benefits 	because
coverage 	for 	cosmetic 	extras 	has 	always 	been extremely limited.
CP 3, 	describing the VSP benefits 	in effect on June 30, 	1988,
includes 	the general 	statement 	that 	the plan 	"is 	designed to
cover visual 	needs 	rather than cosmetic materials," 	and 	indicates
that benefits 	for cosmetic 	extras 	such as 	lens 	coatings 	are
limited. 	Specifically, 	the employee 	"will pay the additional
laboratory cost 	for the 	extras plus 	a modest additional 	fee."
CP 2, 	describing benefits under the new VSP plan, 	contains 	the
same 	general 	statement 	concerning 	cosmetic 	extras 	and 	indicates
that 	the 	employee 	"will 	be 	required 	to pay any additional 	costs
associated with 	these 	extras." 	While 	the 	language 	is 	somewhat
different, 	these exhibits 	clearly indicate 	that 	it 	is 	essentially
the 	responsibility 	of 	the 	employee 	to pay 	for 	cosmetic 	extras
under both the plan in effect on June 30, 	1988, 	and the new VSP plan.
18

CDFF offers 	the 	testimony of 	Crabtree 	to bolster the 	claim
of 	increased employee 	cost 	for cosmetic 	extras. 	Crabtree 	stated
that 	the 	contract 	between VSP 	and participating providers
mandated that 	employees be given a 20% 	discount 	on cosmetic
extras under the prior VSP plan, 	and under the new plan the
discount 	is not mandated. 	As noted, 	however, 	the contracts
between VSP and 	its 	providers 	were 	not 	introduced 	into 	evidence,
so Crabtree's 	assertion cannot be verified. 	Also, 	Crabtree's
claim appears 	to be 	inconsistent 	with 	the 	limitation on 	cosmetic
extras benefits 	described in CP 3 	and CP 2. 	Crabtree 	further
testified 	that 	in June 	1996 	he purchased an 	optional 	lens
coating, 	a cosmetic extra, 	for $53 	under the new plan. 	He
testified that 	the 	lens 	coating would have 	cost 	him $44 	before
the 	change 	to the new VSP plan. 	Again, 	the 	record includes no
documentation of 	Crabtree's 	purchase 	or of 	his 	assertion
concerning the previous 	cost of 	the lens 	coating, 	so it 	is
impossible 	to verify his 	claim. 	However, 	assuming the accuracy
of Crabtree's assertion, 	the cost of a specific, 	optional 	lens
coating, 	subject 	to the 	limited benefit 	for cosmetic extras,
increased by $9 	under the new VSP plan. 	The Board declines 	to
conclude 	that 	this modest 	increase 	in the 	cost 	of an optional
service, 	which could occur no more 	than once a year when
eyeglasses 	are 	obtained, 	constitutes 	a 	significant 	impact 	on the
actual 	vision 	care benefits 	received by employees.
The 	testimony and the 	documentary 	evidence 	fails 	to
demonstrate 	that 	the 	actual 	vision 	care benefits 	received by
19

employees 	has 	been 	impacted 	significantly by a 	change 	in 	the 	cost
of 	cosmetic 	extras under the new VSP plan.
CDFF also 	offers 	the 	testimony 	of Williams 	who paid 	"sixty-
something dollars" 	in January 1995 	for 	two pairs 	of 	glasses under
the prior VSP plan and 	$73 	in January 	1997 	for an 	eye 	examination
and one pair of 	glasses 	under the new VSP plan. 	There 	is 	no
documentation of Williams' 	purchases, 	so it 	is not possible to
verify 	them or 	determine 	whether 	the materials 	and 	services 	he
obtained 	in 	1995 	and 	1997 were 	comparable. 	Williams 	testified
that 	he was 	told by an employee at 	his 	doctor's 	office 	that 	the
higher cost was due 	to an increase 	in the deductible. 	However,
it 	is undisputed that 	the 	employee 	deductible under the prior and
new VSP plans 	is 	identical 	- 	$10 	for eye examinations and $25 	for
lenses and frames 	- 	so it 	is 	clear that any increase 	in the 	cost
of 	the 	glasses 	purchased by Williams 	was 	not 	caused by an
increased 	deductible.
A closer 	review of 	the 	evidence 	indicates 	that Williams'
claim is 	quite problematic. 	An eye 	examination and a 	single pair
of 	glasses 	would 	carry a minimum employee 	deductible 	of 	$35 	in
both 	1995 	under 	the prior VSP plan and 	1997 	under 	the 	new VSP
plan. 	There 	is 	no 	coverage 	for a 	second pair of 	glasses under
either plan. 	Assuming Williams paid 	$35 	in 	1995 	for the pair of
glasses 	covered by the VSP plan, 	his 	testimony 	indicates 	that 	he
paid less 	for the 	second pair, 	even though the VSP plan afforded
him no coverage 	for that 	second pair. 	Essentially, 	Williams'
testimony raises more questions 	than it answers, 	and it 	is
20

difficult 	to draw specific 	conclusions 	from it without 	the
benefit 	of any documentation of his purchases. 	In any event, 	it
is 	clear 	that 	factors 	other than a 	change 	in the deductible 	led
to the higher cost 	for glasses Williams may have 	experienced, 	but
whether 	those 	factors 	were 	related 	to 	the 	change 	to 	the 	new VSP
plan is unknown.
Reviewing the 	record as a whole, 	it 	is 	clear that vision
care benefits 	under 	the 	new VSP plan are 	somewhat 	different 	than
under the prior VSP plan. 	Specifically, 	there may be 	fewer
frames 	available under 	the new plan which are 	fully covered by
the vision care benefit after the 	employee pays 	the deductible.
However, 	employees 	continue 	to have a 	selection of 	fully 	covered
frames 	from which to choose. 	Also, 	there may be a modest
increase 	in 	the price participating doctors 	are 	charging 	for 	some
optional benefits 	such as 	cosmetic extras. 	However, 	payment 	for
these 	options 	has 	always been the 	responsibility of 	employees 	so
the 	impact 	on covered benefits 	appears minimal. 	It 	is also 	clear
that major 	components 	of 	the vision 	care benefits 	received by
employees, 	including coverage for eye examinations, 	lenses and
frames 	and contact 	lenses, 	are 	either 	identical 	or 	substantially
the 	same under both plans. 	As noted, 	minor adjustments 	in
specific 	benefits 	offered under general 	health benefit 	CBA
provisions are a normal 	occurrence. 	Accordingly, 	PERB requires a
showing 	that 	such an adjustment 	has 	a 	significant 	impact 	on
actual 	benefits 	received by 	employees 	before 	the 	Board will
conclude 	that 	it 	constitutes a negotiable 	change. 	The evidence
21

presented by CDFF 	in 	this 	case 	falls 	short 	of meeting 	this
requirement.
Summary
To prevail 	in this 	case, 	CDFF must present 	evidence of 	the
impact 	on actual vision care benefits, 	or their cost 	to
employees, 	which resulted from the State's action. 	The evidence
CDFF presents 	is 	either speculative, 	insufficiently explained or
unhelpful 	in demonstrating this 	impact. 	Therefore, 	CDFF has
failed to meet 	its burden of 	showing 	that 	there has been a
significant 	impact 	on the 	actual 	vision 	care benefits 	received by
employees, 	or the employee 	cost of 	those benefits, 	resulting from
the 	change 	to 	the new VSP plan.
ORDER
The unfair practice 	charge 	and 	complaint 	in 	Case
No. 	SA-CE-891-S are DISMISSED WITHOUT LEAVE TO AMEND.
Members 	Dyer and Amador 	joined 	in 	this 	Decision.
22