Pajaro Valley Unified School District (PERB 0051E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS BOARD
PAJARO VALLEY EDUCATION ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
PAJARO 	VALLEY 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-38
PERB Decision No. 	51
May 22, 	1978
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Appearances; 	Joseph G. 	Schumb, Jr., Attorney 	(LaCroix and
Schumb) 	for 	Pajaro Valley Education Association/CTA/NEA; 	Keith
V. 	Breon, 	Attorney 	(Breon, 	Galgani 	and Godino) 	for Pajaro
Valley 	Unified 	School 	District.
Before Gluck, Chairman; 	Cossack Twohey and Gonzales, 	Members.
OPINION
On December 	20, 	1976, 	the Pajaro Valley Education
Association/CTA/NEA 	filed 	a 	charge 	alleging 	that 	the 	District
had 	initiated 	payroll 	deductions 	for 	dental 	and 	vision 	care
insurance 	during 	the 	course 	of 	contract 	negotiations. 	The
Association 	charged 	that 	by 	that 	act 	the 	District 	had made 	a
unilateral 	change 	in 	terms 	and 	conditions 	of 	employment 	that
violated sections 3543.5 (a), 	(b) 	and 	(c) 	of the Educational
1/The Association 	was 	recognized 	as 	the 	exclusive
representative 	of 	certificated 	employees 	of 	the 	District 	on
June 10, 1976.

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Employment 	Relations 	Act. 	The 	District's 	answer 	to 	the
charge 	acknowledged 	that 	the 	District 	had 	instituted 	the
deductions 	in 	question, 	but 	stated 	that 	it 	was 	the 	accepted
past 	practice 	of 	the 	District 	to 	pass 	on 	to 	the 	employees 	any
increased 	cost 	of 	insurance 	pending 	the 	outcome 	of
discussions. 	After 	a 	hearing 	before 	a 	Public 	Employment
Relations 	Board 	(hereafter 	PERB) 	hearing 	officer, 	the 	hearing
officer 	submitted 	a 	proposed 	decision 	dismissing 	the 	charge 	in
its 	entirety. 	For 	the 	reasons 	set 	forth 	below, 	we 	affirm 	the
decision 	of 	the 	hearing 	officer.
DISCUSSION
I.
The 	status 	of 	exclusive 	representative 	carries 	with 	it
the 	basic 	right 	to 	determine 	jointly 	with 	the 	employer 	all
matters 	related 	to wages, 	hours of 	employment, 	and 	other
designated 	terms 	and 	conditions 	of 	employment. 	See
2 The 	Educational 	Employment 	Relations 	Act 	(hereafter
EERA) 	is 	codified 	at Government Code 	sections 	3540, 	et 	seq.
Section 	3543.5 	states 	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.

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sections 3543.1 (a) 	and 3543.2.3 Section 3543.5(c) , 	which 	the
District 	in 	this case 	is charged with violating, 	is both a
guarantee 	to 	the 	exclusive 	representative 	and 	a 	caution 	to 	the
employer 	that 	decisions 	respecting 	conditions 	of 	employment
that 	are 	within 	the 	scope 	of 	representation 	are 	to 	be 	made 	on
the basis 	of 	the 	bilateral 	act of 	negotiating 	in good 	faith.
The Board 	has construed 	section 	3543.5 (c) 	in 	two cases
where 	the 	parties 	disputed 	whether 	certain 	subjects 	were 	within
3Section 	3543.1 (a) 	states 	in pertinent
part:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their 	members 	in 	their
employment 	relations 	with 	public 	school
employers, 	except 	that once 	an employee
organization 	is 	recognized 	or 	certified 	as
the 	exclusive 	representative 	of 	an
appropriate 	unit 	pursuant 	to 	section 	3544.1
or 	3544.7, 	respectively, 	only that employee
organization may 	represent 	that 	unit 	in
their 	employment 	relations 	with 	the 	public
school 	e m p l o y e r . . . .
Section 	3543.2 	states 	in pertinent part:
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, 	leave 	and
transfer policies, 	safety conditions 	of
employment, class size, procedures to be
used 	for 	the 	evaluation of 	employees,
organizational 	security 	pursuant 	to
section 	3546, 	and procedures 	for 	processing
grievances pursuant 	to sections 	3548.5,
3548.6, 3548.7, and 3548.8. 	. 	. 	.

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the 	scope 	of 	representation 	set 	forth 	in 	section 	3543.24.
The 	instant 	case 	presents 	the 	first 	nonscope 	related 	dispute
falling under 	section 	3543.5(c).
This 	Board 	previously 	has 	noted 	that 	federal
precedents 	are 	relevant 	for 	guidance 	in 	interpreting 	EERA
language where 	the 	statutes 	are 	similar. 	Sweetwater Union High
School District 	(11/23/76) 	EERB Decision No. 	4, 	and 	see
Firefighters Union v. 	City of Vallejo 	(1974) 	12 Cal.3d 	608. 	In
reaching 	this 	decision, 	we 	take 	cognizance of case 	law
developed 	under 	the Labor 	Management 	Relations Act, 	as 	amended,
(hereafter 	LMRA).5
II.
Section 	3543.5(c) 	of 	the 	EERA 	is 	similar 	to
section 8 fa) (5) 	of the LMRA, which states:
It 	shall 	be 	an 	unfair 	practice 	for 	an
employer 	... 	to 	refuse 	to bargain
collectively 	with 	the 	representatives 	of 	his
employees, 	subject 	to the provisions of
Section 9(a).
The 	National 	Labor 	Relations Board 	(hereafter NLRB) 	has 	long
held 	that 	section 	8(a)(5) 	requires 	that 	the 	employer 	negotiate
with 	a 	bona 	fide 	intent 	to reach 	an 	agreement. 	In 	re Atlas
Mills, 	Inc. 	(1937) 	3 NLRB 10 	[1 LRRM 60]. 	The standard
generally 	applied 	to 	determine 	whether 	good 	faith 	bargaining
4Fullerton Union 	High 	School 	District 	(7/27/77) 	EERB
Decision No. 	20, 	and Sonoma County Organization of Public
Employees 	(11/23/77) 	EERB Decision No. 	40, 	and 	see Ross School
District Board of Trustees 	(2/21/78) 	PERB Decision No. 	48.
529 	U.S.C, 	section 	151 	et 	seq. 	The Labor Management
Relations Act 	amended 	the 	National 	Labor 	Relations Act.

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has 	occurred 	has 	been 	called 	the 	"totality of 	conduct" 	test.
See NLRB v. 	Stevenson Brick and Block Co. 	(4 Cir. 	1968) 	393
F.2d 	234 	[68 	LRRM 2086], modifying 	(1966) 	160 NLRB 198 	[62 LRRM
1605]. 	This 	test looks 	to 	the entire course of negotiations 	to
determine 	whether 	the 	employer 	has 	negotiated 	with 	the
requisite 	subjective 	intention 	of 	reaching 	an 	agreement.
There 	are certain acts, 	however, 	which have 	such 	a
potential 	to 	frustrate 	negotiations 	and 	to 	undermine 	the
exclusivity 	of 	the 	bargaining 	agent 	that 	they 	are 	held 	unlawful
without 	any 	determination 	of 	subjective 	bad 	faith 	on 	the 	part
of the employer. 	In NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM
2177] 	the 	NLRB found 	that 	a 	unilateral grant of benefits, 	short
of 	impasse 	and 	without 	notice 	to 	the 	union, 	constituted 	per 	se
an 	illegal 	refusal 	to bargain. 	This position was 	affirmed 	by
the 	United 	States 	Supreme 	Court. 	The 	court 	found 	that 	just 	as
an outright 	refusal 	to bargain with 	respect 	to wages, 	hours 	and
other 	terms 	and 	conditions 	of 	employment 	violates 	the 	duty 	to
bargain, 	so does a unilateral change 	in 	the 	terms 	and
conditions of employment, 	for 	such a change 	is 	"a circumvention
of 	the 	duty 	to 	negotiate 	which 	frustrates 	the 	objectives of
Section 	8(a)(5) 	much 	as 	does 	a 	flat 	refusal." 	50 	LRRM at pp.
2180. 	The court 	stated:
[T]he Board 	is 	authorized 	to order 	the
cessation of behavior 	which 	is 	in effect 	a
refusal 	to negotiate, 	or which directly
obstructs 	or 	inhibits 	the 	actual process of
discussion, 	or 	which 	reflects 	a cast of mind
against 	reaching 	agreement. 	Unilateral
action 	by 	an 	employer 	without prior
discussion with 	the 	union does 	amount 	to a
refusal 	to 	negotiate 	about 	the 	affected

conditions 	of 	employment 	under 	negotiations,
and must 	of 	necessity 	obstruct 	bargaining,
contrary 	to congressional 	intention. 	It
will often disclose 	an 	unwillingness 	to
agree with 	the 	union. 	It will 	rarely be
justified 	by 	any 	reason of 	substance.
(50 LRRM at pp. 	2182)
The 	Katz 	rule, 	originally developed 	in 	the context of
an 	employer 	unilaterally 	granting merit 	pay 	increases, 	applies
equally where 	the 	employer 	unilaterally 	deprives 	employees 	of
benefits 	already 	in existence. 	Hen House Market 	(1969) 	175
NLRB 	596 	[71 LRRM 1072] 	enforced 	in Hinson v. 	NLRB
(8th Cir. 	1970) 	428 F.2d 	133 	[73 	LRRM 2667]. 	For example, 	in
Borden, 	Inc. 	(1972) 	]96 NLRB ]170 	[80 LRRM 1240] 	the NLRB held
that 	the 	employer 	violated 	section 	8(a)(5) 	by 	unilaterally
cancelling 	an 	employee 	insurance 	plan 	without 	first 	affording
the 	union 	an 	opportunity 	to 	bargain 	about 	the 	contemplated
cancellation. 	The 	Board 	found 	that 	the 	employer's 	acts 	gave
rise 	to 	an 	"atmosphere of 	hostility" 	which 	discouraged
settlement, 	and 	that 	the 	cancellation of 	benefits 	impermissibly
infringed on employees' 	"right 	to participate, 	through 	their
bargaining 	representative, 	in 	decisions 	concerning 	their 	wages
and 	other 	benefits." 	80 	LRRM at 	1244.
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." 	Stratford 	Industries, 	Inc. 	(1974) 	215 NLRB 682
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[88 	LRRM ]240]. 	Compare NLRB v. 	Allied Products Corp.
(6 Cir. 	1977) 	548 F.2d 644, 	[94 LRRM 2433], modifying 	(1975)
218 NLRB 	1246 	[89 LRRM 1441], 	in which 	the NRLB held 	a wage
increase 	which 	was 	not 	consistent 	with 	the 	employer's 	past
practice 	to be 	violative of NLRA section 8(a)(5). 	Also 	see
Borden, Inc., supra.
III.
In 	the present case, 	the District has 	acknowledged
that 	it 	unilaterally 	instituted 	the 	pre-impasse 	payroll
deductions 	in question. 	If 	the District's 	action was 	not 	in
accordance 	with 	a past 	practice 	of 	paying 	only 	an 	agreed 	upon
sum 	for 	health benefits 	for 	employees, 	then 	the 	District may be
held 	to have 	violated 	section 	3543.5 (c). 	The crucial question,
therefore, 	is whether 	the District's 	act was 	consistent with
such 	a practice.
From October 	to December 	of 	1973, 	the District
deducted 	from employees' 	paychecks 	the 	amount of 	increased
premiums 	for 	Blue 	Cross 	benefits 	and 	Long 	Term Disability
Insurance. 	The 	District 	continued 	this 	deduction 	until
discussions on 	the 	contract were completed, 	whereupon 	it
compensated 	employees 	retroactively 	for 	the 	accumulated 	amount
of 	the 	increase.
In November of 	1974, 	the 	District contracted 	with 	a
new carrier 	for 	dental 	and 	vision 	insurance. 	The 	policy of 	the
new 	insurer 	required 	the 	employees 	to 	sign 	payroll 	deduction
authorization 	cards 	in order 	to enroll 	in 	the program. 	This
change 	in carrier 	resulted 	in 	a 	savings 	to 	the District of
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$100,000. 	The 	parties 	agreed 	that 	the 	savings 	would 	be 	used
for 	fringe 	benefits, 	including 	insurance 	premium 	increases.
The 	District 	paid 	the 	entire 	cost 	of 	those 	benefits 	for 	the
1974-1975 	school 	year.
During 	the 	1975-76 	school year, 	the parties 	entered
into a memorandum of 	understanding 	which 	stated, 	in pertinent
part:
The 	District 	agrees 	to maintain 	and 	accept
responsibility 	for 	the 	continuance 	of 	all
July 1, 	1975, certificated, non-management
employee 	health 	and 	welfare 	benefits,
through June 	30, 	1976. 	All 	future changes
in 	the 	health 	and 	welfare 	fringe 	benefit
package 	will 	be 	subject 	to 	the meet 	and
confer process. 	(Emphasis 	supplied.)
During 	the 	same 	time period, 	there was 	an 	increase 	in Blue
Cross 	premiums 	which 	the 	District 	paid 	for 	from 	the 	$100,000
surplus. 	There was 	no 	increase 	in 	the premium amount 	for
dental 	and vision benefits, 	and 	the 	District paid 	the 	entire
premium as 	it 	agreed 	to do 	in 	the memorandum of 	understanding.
On May 	19, 	1976, 	the Association 	submitted 	an 	"interim
and partial proposal" 	relating 	to 	its 	3976-77 	contract. 	The
proposal 	suggested 	that 	the 	entire 	cost 	for 	insurance 	premiums
be 	picked 	up by 	the 	District. 	It 	indicated 	that 	"the 	urgency
behind 	this 	request 	is 	heightened 	by 	the 	fact 	that 	the 	District
must 	execute 	a 	contract 	with 	the 	health 	and medical plan
carrier 	by July 	1, 	1976." 	The proposal 	stated:
There 	are 	two major 	changes 	from present
policy 	in our proposal:
(a) 	A commitment by 	the District 	to assume
increased 	annual premiums 	in 	the maintenance
of 	all 	insurance 	programs. 	The 	reasons 	are

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myriad and obvious; 	and, 	this 	is THE
priority 	direction made 	by 	an 	overwhelming
majority of our membership. 	. 	. 	. 	(Emphasis
added.)
On July 	1, 	1976, 	the 	District 	instituted 	payroll
deductions 	for 	an 	increase 	in Blue Cross benefits.
On July 7, 	3 976, 	the Association submitted a proposed
contract 	for 	the 	1976-77 	year. 	The 	contract proposed 	that 	the
District 	pay 	the 	entire 	cost 	of 	dental 	and 	vision 	insurance.
On September 	15, 	1976, 	the District offered a
counterproposal, 	which 	stated 	that 	the 	District would maintain
both 	the 	current 	insurance 	programs 	and 	the 	1975-76 	level 	of
premium 	contributions.
On November 	], 	1976, 	the cost of dental 	and vision
care 	insurance 	increased. 	The 	District 	notified 	the
Association 	that 	the 	increased 	costs 	would 	be 	deducted 	from
employees' paychecks. 	The 	District 	agreed 	that 	any 	settlement
on 	fringe 	benefits would 	be 	retroactive 	to July 	1, 	1976. 	It
refused 	to 	negotiate 	the 	premium 	increases 	"piecemeal," 	and
insisted 	on 	negotiating 	an 	"entire 	package."
On January 1, 	1977, 	the disputed 	payroll 	deductions
began.
On 	the 	basis of 	these 	facts, 	we 	conclude 	that 	the
District's January 	1, 	1977, 	institution of payroll deductions
for 	vision 	and 	dental 	insurance 	was 	permissible. 	The 	record
shows 	that 	the 	District 	had 	an 	established practice 	of 	paying
only 	a 	prescribed 	amount 	for 	insurance 	premiums 	for 	employees
pending 	negotiations. 	The 	one 	exception 	to 	this

practice—where 	the 	District 	paid 	for 	an 	increase 	in 	Blue 	Cross
benefits 	for 	the 	1975-76 	year—was 	made 	because 	of 	an
unexpected 	windfall 	caused 	by 	the 	lesser 	rates 	of 	a 	new
insurer. 	The Association's 	"partial 	and 	interim proposal" 	of
May 19, 	1976, 	acknowledged 	this past practice, 	as 	it 	indicated
that 	it would 	be 	a 	"major 	change 	from present policy" 	for 	the
District 	to 	assume 	the 	increased 	premium amount.
In 	summary, 	the 	facts of 	this 	case 	show an historic
and 	accepted 	practice 	of 	the 	District 	contributing 	only 	a 	sum
certain 	for 	employee 	health 	benefits 	pending 	the 	outcome 	of
negotiations. 	Because 	of 	that past practice, 	the District
customarily 	has 	passed 	on 	to employees 	the 	cost 	of 	increased
insurance 	premiums. 	Although 	the 	District 	likely would 	have
violated 	its 	negotiating 	obligation 	if 	it 	had 	caused 	employees'
insurance 	coverage 	to have 	been 	decreased 	or 	eliminated, 	we
cannot 	conclude 	in 	the 	face 	of 	the 	past practice of 	the 	parties
that 	the 	District was 	under 	an obligation 	to assume 	the
increased premium cost. 	For 	these 	reasons, 	the 	District's
passing 	on 	of 	increased 	premium costs 	was 	not 	a 	prohibited
"change" 	in 	the conditions of employment, 	and 	the District did
not 	breach 	its 	obligation 	under 	section 	3543.5 (c) 	to negotiate
in good 	faith.
IV.
Two 	final 	arguments of 	the Association 	remain. 	First,
the 	Association 	argues 	that 	the 	District's 	alleged 	violation of
section 3543.5 (c) 	constitutes derivative violations of
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section 3543.5 (a) 	and 	(b). 	Since 	the Association has 	failed 	to
prove 	that 	the District's 	action violated 	section 	3543.5(c), 	we
find 	it 	unnecessary 	to 	reach 	the 	question of 	whether 	such
derivative 	violations 	are 	possible 	under 	the 	EERA's 	statutory
scheme.
Lastly, 	the Association 	contends 	that 	the 	District's
institution 	of 	payroll 	deductions 	violated 	California 	law 	in
that 	(]) 	the 	deductions 	constituted 	an 	illegal payroll
deduction 	under 	California 	case 	law 	(See Aebli 	v. 	Board 	of
Education 	(1944) 	62 Cal.2d 706, 	751; 	(2) 	the deductions were
taken 	without 	a 	valid 	authorization 	from 	the 	employees 	as
required 	by Education Code 	sections 	44041 	and 	44042. 	The
hearing 	officer 	in 	this 	case 	declined 	to 	rule 	on 	these 	alleged
violations 	since 	they were 	not 	relevant 	in determining 	whether
an 	unfair practice had 	been committed 	in 	this case. 	He 	held
that while 	in 	some 	cases 	willful 	violations of 	the 	law may be
relevant 	to 	a 	determination 	of 	whether 	an 	unfair 	practice 	has
been committed, 	the 	determination of whether 	the 	District 	acted
illegally 	in 	this 	case 	did 	not hinge 	on 	the 	alleged 	statutory
violations. 	We 	affirm 	the 	hearing 	officer's 	reasoning 	and
conclusion 	on 	this 	issue.
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ORDER
The 	charge 	filed 	by 	Pajaro Valley 	Education
Association/CTA/NEA 	against 	Pajaro 	Valley 	Unified 	School
District 	is 	hereby 	DISMISSED .
Date: 	April 	19, 	1978
By: , 	Harr ~ Gluck, 	Chalr~n
~ I
'/
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Jerilou 	Cossack 	Twohey
Member
RayrnondJ.GonzalesMember
V

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STATE OF CALIFORNIA
EDUCATIONAL EMPLOYMENT RELATIONS BOARD
In the matter of:
PAJARO VALLEY EDUCATION ASSOCIATION,
CTA/NEA,
Charging Party,
vs.
PAJARO VALLEY UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	CASE No. 	SF-CE-38
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Appearances: 	Joseph G. Schumb, Jr., Attorney (La Croix and Schumb) for
Pajaro Valley Education Association CTA/NEA; Keith V. Breon, Attorney
(Breon, Galgani and Godino) 	for Pajaro Valley Unified School District.
Before Gerald A. Becker, Hearing Officer
STATEMENT OF THE CASE
On December 20, 1976, the Pajaro Valley Education Association
CTA/NEA (hereinafter "Association") 	filed an unfair practice charge against
the Pajaro Valley Unified School District 	(hereinafter "District")
alleging a violation of Government Code §3543.5 (a), (b) and (c).
The Association essentially alleges that effective January 1,
1977, 	the District unilaterally instituted a payroll deduction for premium
increases in the employees' vision and dental care insurance benefits.
The hearing on this matter was held on March 21 and 22, 	1977
at the EERB offices in San Francisco, California. 	At the start of the
hearing, 	the District was permitted to orally 	amend its answer to include
the affirmative defense that the Association waived its right to file
the unfair practice charge by reason of the fact that it did not file
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an unfair practice charge with respect to a similar payroll deduction 	initiated
by the District on July 1, 1976 for an increase in Blue Cross insurance premiums.
(See EERB Regulation 35012 	(b).)
FINDINGS OF FACT
The District is an employer and the Association is an employee
organization within the meaning of the Educational Employment Relations Act
( E E R A ) .' 	On June 10, l976, after a close election against the Pajaro Valley Federa-
tion of Teachers, the Association became the exclusive representative for the
certificated employees' negotiating unit.
The District's contract with its insurance carrier for employees'
vision and dental care benefits, Great-West Life Assurance Company, expired on
October 31, 1976. 	The contract provided for automatic renewal unless cancelled.
The District was aware in July 	1976 that renewal of the contract would result in
premium increases, which turned out to be $15.19 a month per employee. 	The
premium increases were discussed at six or seven negotiating sessions prior to
the filing of the unfair practice charge. 	In addition, the Association pro-
posed different, more expensive carriers for the vision and dental benefits.
Fringe benefits, 	including dental and vision care, were a high priority in
negotiations for the Association.
At an October 1, 	1976 and subsequent negotiating sessions, 	the
Association warned the District that if it did not pick up the premium increases
without a payroll deduction for employees, 	its members would be upset and nego-
tiations could be jeopardized. 	Loss of membership was not mentioned because at
the time the Association was conducting a very successful recruiting program.
While it agreed that any settlement on fringe benefits would be retroactive to
July 1, 1976, the District refused to negotiate the premium increases "piecemeal",
1Gov. 	Code §§3540 et seq. 	_ 2 _

but 	rather insisted on negotiating an entire package. 	The District was concerned
because reduction in class size also was a high priority for the Association.
A reduction in class size would lead to increased costs for the District and
therefore it did not want to settle economic items until the class size issue
also was settled. 	In addition, the school board wanted to put the money into
salary, 	rather than into the fringe benefits program which already was high.
In fact, the benefits program was somewhat better than average.
After some delays the District initiated the payroll deductions
for the increased dental and vision care premiums for all employees, 	certificated,
classified, and management, on January 1, 1977. 	Negotiations for this year had
not concluded at the time of the hearing.
After the payroll deductions began, Association representatives
and negotiating team members received many inquiries and complaints concerning
the payroll deductions. 	There also was pressure on the negotiating team to
settle early. 	There is insufficient evidence to determine whether the Association
lost any membership because of the payroll deduction.
The following District policy resulted from the 1975-76 memorandum
of understanding between the District and the Certificated Employees Council
under the Winton Act 	:
"...The district agrees to maintain and accept
responsibility for the continuance of all July 1,
1975, certificated, non-management employee health
and welfare benefits thru June 30, 1976. 	All future
changes in the health and welfare fringe benefits
package will be subject to the meet and confer
process."
2Former Education Code §§13080 et seq., repealed effective July 1, 1976.
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In 1975-76, 	and since the 1973-74 school year, it was the practice in
certificated employee negotiations to negotiate 	on the basis of a
total dollar amount for salaries and other economic benefits.
From October to December 1973, 	the District made payroll
deductions for increased premium costs of Blue Cross, vision 	and dis-
ability benefits. 	These premium increases were retroactively paid by
the District upon conclusion of negotiations. 	From January 1974 thru
June 1976, 	the District made payroll deductions for some employees for
their Blue Cross coverage for dependents. 	Since July 1, 1976, the District
has been making payroll deductions for all employees for increased Blue
Cross premiums. 	The District never has picked up increased health care
premium costs prior to settlement of negotiations except for a July 1,
1975 Blue Cross increase which was paid for by the District,, pursuant to
the 1974-75 memorandum of understanding with the Certificated Employees
Council, with money saved by a previous change in insurance carriers.
During negotiations both parties have changed their positions
on fringe benefits. 	However, 	the Association has not dropped its proposal
to change insurance carriers.
ISSUES
Did the District's payroll deduction of the vision and
dental care premium increases:
(a) 	constitute an unlawful unilateral action without
meeting and negotiating in good faith in violation of Government Code
§3543.5(c) ?
(b) 	deny the Association its right to represent members
of the negotiating unit in violation of Government Code §3543.5(b)?
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(c) 	impose reprisals on employees and interfere with
their right to be represented by an exclusive representative in violation
of Government Code §3543.5(a)?
DISCUSSION
1. 	The District's payroll deduction of the vision and dental care premium
increase was not unlawful, but rather maintained the status quo during
negotiations.
There is a strong presumption that unilateral action by an
employer during negotiations to grant, 	increase or decrease benefits under
negotiation is per se an unlawful refusal to negotiate in good faith.
Despite the June 30, 1976 limitation in the District's insurance benefits
policy, 	absent compelling justification it is obligated to maintain the
status quo and not change existing working conditions or benefits pending
negotiation of the new 1976-77 contract. 	NLRB v . K a t z (1962) 369 U.S. 	736,
50 LRRM 2177; Borden, Inc.(1972) 196 NLRB 1170, 80 LRRM 1240, 1244.
A similar rule has been adopted in other states. 	See, e.g. Triborough
Bridge and Tunnel Authority (N. Y. 1972) 5 PERB 3064; Cumberland Valley
School District (Pa. 1975) 6 PPER 211; Piscataway Township Board of Education
(N.J. 1975) 1 NJPER 49. 	The Association contends that the District's action
in making payroll deductions for the vision and dental care premium increases
constituted a unilateral reduction in salary during negotiations since
employees' 	take-home pay was lowered.
The Association's contention that a lower take-home pay is
equivalent to a reduction in salary is untenable. 	Pertinent Education
Code provisions do not define salary in terms of net, rather than gross,
pay. 	See Education Code §§45023, 45028. 	Increases in social security,
federal or state tax withholdings, 	or indeed in organizational dues with-
held pursuant to Government Code §3543.1 (d), similarly would reduce take-
home pay. 	It would be implausible to contend that increases in
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these withholding items entirely outside the District's control would
be unlawful, unilateral salary decreases. 	But the vision and dental
care premium increases imposed by the insurance carrier also were not
within the District's control. 	Unless cancelled the policies were auto-
matically renewed. 	If the District had cancelled the policies, 	it
would have been subject to an unfair charge for a unilateral reduction
of benefits under the rationale of NLRB v. Katz.
In the hearing officer's opinion, it is more logical to
characterize the payroll deductions as a decrease in health benefits
since employees now have to contribute to obtain the same level of vision
and dental care benefits previously provided solely at District expense.
In any event, however the payroll deductions are characterized, it is
necessary to examine the District's past practice with respect to health
care premium increases to determine whether the payroll deductions
disturbed the status quo and therefore constituted an unlawful, unilateral
action.
As set forth in the findings of fact, the evidence demon-
strates that the District's past practice has been not to pay for health
care premium increases until the conclusion of negotiations. 	The one
exception, the July 1, 1975 Blue Cross increase, was a special circum-
stance in that the District agreed to use a one-time savings to offset
future increases. 	After the savings had been exhausted, 	the District
reverted to its previous practice and made a payroll deduction for the
July 1, 	1976 Blue Cross premium increase. 	In view of this past practice,
it cannot be said that the District's refusal to pick up the vision and
dental care premium increases constituted bad faith negotiations under
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Government Code S3543.5(.c). 	Cf. E. W. Scripps Co. (1951) 94 NLRB
227, 229-30, 28 LRRM 1033.
It is further found that the payroll deductions did not
change the status quo because during the past few years it has been
the practice to negotiate in terms of a total dollar amount rather
than for specified working conditions and benefits. 	In a May 19, 1976
memorandum to the school board, 	the Association itself characterized
its proposal that the District assume increased premiums in all insurance
programs as a "major change from present policy." 	This being the case,
the District committed itself only to a certain total dollar amount
for fringe benefits rather than a specified level of fringe benefits
without regard to cost. 	After the payroll deductions in issue, the
District continued to provide the same dollar amount of health insurance
benefits and therefore the status quo was unchanged.
2. 	Alleged violations of the Education Code on the part of the District
do not constitute unfair practices.
The Association further argues that in making the payroll
deductions for the vision and dental care premium increases, the District
violated the Education Code in two respects: 	(1) its action constituted
an illegal mid-year reduction in salary (see Aebli v. Board of Education
(1944) 62 C . A . 2d 706,p.751, 145 P. 2d 601); and (2) there was no valid,
written authorization from the employees for the deductions 	(Education
Code §§44041, 44042).
The hearing officer agrees with the District that these
alleged violations of the Education Code are not determinative of
whether an unfair practice was committed in this case. 	The sole question
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to be decided is whether unfair practices were committed in violation
of Government Code §3543.5. 	This determination is independent of the
question of whether any other violations of law also occurred.
This is not to say that other violations of law never
would be relevant in an unfair practice case. 	For example, a deliberate
violation of another law could be relevant in an appropriate case to
prove intent or motivation. 	But there is no need to reach this question
in the present case. 	Accordingly, no determination is made on the
District's alleged violations of the Education Code.
3. 	The District's payroll deduction of the vision and dental care
premium increases did not violate Government Code §3543.5 (a) or (b).
Having found that the payroll deductions did not con-
stitute a refusal to meet and negotiate in good faith under Government
Code §3543.5(c), it follows that there can be no derivative violations
of subsections (a) or (b) on that ground. 	Nevertheless, independent
violations of these two subsections may still be proved.
The Association argues that the payroll deductions upset
its members and caused a membership drop as well as pressure on the
negotiating team to settle early. 	The Association warned the District
that the payroll deductions would upset its members and possibly jeo-
pardize negotiations, and it accordingly wanted to settle vision and
dental care benefits before other negotiation items. 	Against the
backdrop of a recent, close election victory over the rival organization,
the Association contends that the effect of the District's refusal -to
settle these items separately was to weaken the Association's support
and negotiating posture.
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Taking loss of 	membership first, 	the Association did not
tell the District that loss of membership might result if the premium
increases were payroll deducted. 	The Association was conducting a
successful recruiting program at the time and thus there was no reason
to anticipate a membership loss. 	Furthermore, both parties presented
only hearsay evidence of membership figures: 	the Association, that
membership had dropped after the payroll deductions; 	the District,
that membership had risen slightly. 	Hearsay evidence alone is insuff-
icient to support any finding on membership loss 	(EERB Regulation
35026(a)) and therefore the Association has not sustained its burden
of proof on this point. 	(See EERB Regulation 35027.)
As to the Association's remaining contentions, it is
uncontested that the payroll deduction upset Association members and
caused pressure to be put on the Association negotiating 	team to settle
early so that the deductions would end. 	However, the District refused
to settle vision and dental care benefits separately for legitimate
reasons. 	In view of the circumstances, the District's position that
it would negotiate only an entire package was justifiable. 	Reduction in
class size could be very expensive and it was reasonable for the District
not to commit itself on any economic items until this major issue was
settled. 	The fact that negotiations historically have been based on
a total dollar amount does not mitigate against the District's stance
because no evidence was presented that the parties agreed on a specific
dollar total 	for this year's negotiations.
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Furthermore, 	the Association never dropped its proposal
to change to vision and dental carriers which are more expensive than
Great-West. 	The District's refusal to accept the Association's choice
of carriers for valid economic reasons does not constitute bad faith
negotiations. 	Medical Manors, Inc. 	(1973) 201 NLRB 188, 82 LRRM 1222.
Finally, it is noted that "entire package" negotiations
is a usual method of conducting negotiations.
Therefore, it is found that the District was justified
in not settling vision and dental care benefits separately and no
violation of Government Code §3543.5 (a) or (b) occurred.
CONCLUSIONS OF LAW
The District's payroll deduction of the vision and
dental care premium increases:
(a) did not constitute an unlawful unilateral action
without meeting and negotiating in good faith in violation of
Government Code §3543.5(c) .
(b) 	did not deny the Association its right to repre-
sent members of the negotiating unit in violation of Government Code
§3543.5(b).
(c) 	did not impose reprisals on employees and interfere
with their right 	to be represented by an exclusive representative
in violation of Government Code §3543.5(a).
ORDER
The unfair practice charge 	filed by the Pajaro Valley
Education Association CTA/NEA 	is hereby dismissed.
Pursuant to Title 8, Cal. Admin. Code §35029, this
recommended decision and order shall become final on June 22, 1977 unless
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a party files a timely statement of exceptions. 	See 8 Cal. Admin.
Code §35030.
GERALD A. BECKER
Hearing Officer
Dated: 	June 10, 1977
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