Palo Verde Unified School District (PERB 0321E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

PALO VERDE TEACHERS ASSOCIATION,
CTA/NEA,

Charging Party, Case No. LA-CE-1306
Vv. PERB Decision No. 321
PALO VERDE UNIFIED SCHOOL DISTRICT, June 20, 1983

Respondent.

Appearances: Ronald C. Ruud, Attorney (Atkinson, Andelson,
Loya, Ruud and Romo) for Palo Verde Unified School District.

Before Jaeger, Morgenstern and Burt, Members.
DECISION
BURT, Member: This case is before the Public Employment
Relations Board (PERB or Board) on exceptions filed by Palo
Verde Unified School District (District) to a proposed decision
by an administrative law judge (ALJ) finding that it violated
subsections 3543.5(a), (b) and (c) of the Educational

Employment Relations Act (EERA)1 by unilaterally changing the

1EERA is codified at Government Code sections 3540
et seq. Subsections 3543.5(a), (b), (c) and (e) provide as
follows:

It shall be unlawful for a public school
employer to:

(a) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
discriminate against employees, or otherwise

identity 	of 	the 	health 	insurance 	benefit 	carrier 	for 	its
certificated 	employees.
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.
(e) 	Refuse 	to 	participate 	in 	good 	faith 	in
the 	impasse 	procedure 	set 	forth 	in Article 9
(commencing 	with 	Section 	3548).
In 	so 	ruling, 	the ALJ 	upheld 	the 	central 	allegations 	filed
by 	the 	Palo Verde 	Teachers Association, 	CTA/NEA 	(Association),
while 	dismissing 	the 	subsection 	3543.S(e) 	allegation. 	The
Association 	filed 	no 	exceptions.
We 	have 	considered 	the 	exceptions 	of 	the 	District 	in 	light
of 	the 	record 	as 	a 	whole, 	and 	hereby 	affirm 	the 	ALJ's 	proposed
decision, 	attached 	hereto 	and 	incorporated 	by 	reference 	herein,
for 	the 	reasons 	set 	forth 	infra.
FACTS
We 	have 	examined 	the 	ALJ's 	factual 	findings 	in 	light 	of 	the
District's 	exceptions 	and 	find 	them 	free 	of 	prejudicial 	error.
The 	pertinent 	facts 	may 	be 	summarized 	as 	follows:
The 	Association 	is 	the 	exclusive 	representative 	of 	the
District's 	certificated 	work 	force.
. . . 	. . 	. 	. . . . . . 	. 	. 	. 	. . . . 	. 	. 	. .
2

The 	nistrict 	and Association 	negotiated 	three 	successive
agreements 	regarding 	health 	plans 	for 	certificated 	employees
prior 	to 	the 	unilateral 	change 	herein. 	The 1977-78 	contract
provided 	that 	the 	District 	would 	pay 	health 	care 	premiums 	up 	to
a 	fixed 	dollar 	amount, 	and 	further 	that" ••• 	the 	District
shall 	retain 	the 	right 	to 	select 	the 	insurance 	carrier." 	In
the 	subsequent 	agreement, 	covering 	the 	periQd 	from July 	1, 	1978
through June 	30, 	1979, 	the 	language 	regarding 	health 	care
benefits 	was 	altered, 	providing 	in 	pertinent 	part 	as 	follows:
Article 	14. 	Salary and 	Benefits
2. 	During 	the 	term of 	this 	agreement 	the
n;qt.r.ict 	will 	make 	the 	following
contributions 	toward 	the 	payment 	of 	premiums
for 	group 	medical, 	dental 	and 	vision
insurance 	plans:
a. 	Up 	to 	$104.34 	tenthly 	for 	Blue 	Cross
family 	coverage.
Thus, 	the 	District 	no 	longer 	retained 	the 	right 	to 	unilaterally
select 	the 	health 	insurance 	carrier
In March 	1979, 	the 	parties 	began 	negotiations 	for 	a
successor 	agreement. 	On June 	5, 	1979, 	they 	agreed 	to
essentially 	"roll 	over" 	the 	1978-79 	contract, 	with 	the
understanding 	that 	when 	updated 	insurance 	cost 	data 	became
available 	they 	would 	negotiate 	regarding 	the 	District's 	level
of 	contribution 	and 	other 	matters 	relating 	to 	benefits.
On September 	19, 	1979, 	the 	parties 	concluded 	reopened
negotiations 	regarding 	health 	benefits. 	The 	language 	which 	was
ultimately 	agreed-upon 	is 	as 	follows:
3

1. 	Amend 	Article 	XIV 	section 	14.2 	to 	read:
Effective 	for 	the 	1979-80 	school 	year, 	the
District 	agrees 	to 	pay 	the 	full 	payment 	of
premiums 	for 	group 	medical, 	dental 	and
vision 	insurance 	plans 	without 	reduction 	of
benefits.
2. 	The Association 	agrees 	to 	continue 	in 	an
advisory 	capacity, 	the 	cooperative 	study 	of
alternative 	health 	benefit 	plans 	in 	an
effort 	to 	reduce 	the 	total 	premium 	cost 	of
the 	package 	without 	a 	reduction 	in 	benefits.
3. 	The 	Association 	agrees 	to 	consider 	an
increase 	in 	the 	deductable 	(sic) 	for 	the
family 	health 	plan 	from 	$50.00 	to 	$100.00
deductable 	for 	the 	1980-81 	school 	year 	in
the 	event 	that 	a 	lower 	premium 	package 	is
not 	available.
-The 	District 	presented 	that 	language 	as 	its 	initial 	proposal.
The 	Association 	requested 	that 	the 	name 	"Blue Cross" 	be
specifically 	included 	as 	the 	carrier, 	as 	it 	had 	been 	in 	the
prior 	contract, 	and 	the 	District 	refused. 	Superintendent
Roberts, 	who 	was 	acting 	at 	the 	time 	as 	the 	head 	of 	the
District's 	negotiating 	team, 	expressly 	testified 	that 	he 	did
not 	consider 	the 	deletion 	of 	the 	specific 	designation 	of 	Blue
Cross 	from 	the 	earlier 	provision 	to 	be 	a 	quid 	pro 	quo 	for 	the
District's 	assumption 	of 	the 	total 	health 	plan 	cost.
In 	the 	late 	summer 	and 	fall 	of 	1980, 	negotiations 	were 	held
regarding 	a 	successor 	agreement. 	The 	District 	initially
proposed 	that 	the 	health 	plan 	carrier 	be 	changed 	to 	Blue
Shield. 	It 	assured 	the 	Association 	that 	the 	District 	could
realize 	a 	$15,000 	savings 	over 	the 	next 	insurance 	year 	with
Blue 	Shield, 	and 	that 	the 	benefit 	levels 	would 	be 	the 	same 	or
4

better. 	It 	informed 	the 	Association 	that 	such 	a 	change 	would
make 	the 	$15,000 	available 	as 	a 	salary 	increase. 	Thus, 	it
offered 	a 	?-percent 	increase 	if 	Blue 	Shield 	would 	be 	the
carrier, 	and 	a 	6-percent 	increase 	if 	the 	carrier 	remained 	Blue
Cross. 	While 	stating 	that 	it 	would 	like 	to 	have 	the
Association's 	agreement 	to 	the 	change 	to 	Blue Shield, 	the
District 	informed 	the Association 	that 	it 	believed 	that, 	under
the 	language 	of 	the 	September 	19, 	1979 	health 	care 	clause, 	it
had 	the 	right 	to 	unilaterally 	change 	carr.iers, 	that 	the
deadline 	for 	such 	a 	change 	would 	be 	October 	31, 	1980, 	and 	that
it 	might 	undertake 	the 	change 	unilaterally 	should 	the
Association 	not 	agree 	before 	that 	date. 	No 	express 	statement
that 	it 	would, 	in 	fact, 	change 	carriers 	was 	ever 	made 	by 	the
District 	prior 	to 	effecting 	the 	change 	on November 	1, 	1980.
In 	response 	to 	the 	District's 	proposal, 	the 	Association's
chief 	negotiator, 	David Bates, 	stated 	that 	he 	had 	no 	problem
with 	a 	shift 	to 	Blue 	Shield 	as 	long 	as 	the 	Association 	could
.ascertain 	that 	the 	coverage 	was 	equivalent. 	He 	stated 	that 	he
needed 	data 	(which 	the 	District 	provided), 	and 	time 	for 	an
Association 	consultant 	to 	review 	it. 	He 	also 	alluded 	to 	having
heard 	of 	problems 	with Blue 	Shield 	in 	anoth0 r 	Southern
California 	district, 	which 	gave 	him 	cause 	for 	concern.
Bates' 	comments 	were 	made 	in 	the 	context 	of 	negotiations
for 	an 	entire 	agreement. 	Neither 	a 	complete 	collective
bargaining 	agreement, 	nor 	any 	specific 	side 	agreement 	regarding
5

health 	plans 	was 	reached 	prior 	to 	November 	1, 	1980, 	on 	which
date 	the 	District 	unilaterally 	changed 	health 	insurance
carriers 	from 	Blue 	Cross 	to 	Blue 	Shield.
The 	District 	concedes 	that 	it 	unilaterally 	switched 	from
Blue 	Cross 	to 	Blue Shield.
In 	all 	respects 	the 	benefit 	levels 	under 	Blue Shield 	are 	at
least 	as 	high 	as 	and, 	in 	some 	respects, 	substantially 	higher
than 	those 	provided 	by Bl_ue 	Cross. 	The 	uncontroverted
testimony 	of 	the 	District's 	witn~ss, 	Norm Shaman, 	established
that 	Blue Shield 	coverage 	was 	substantially 	superior 	in 	several
areas.
Blue 	Shield 	paid 	100 	percent 	of 	the 	daily 	room 	rate 	for 	a
double 	room 	in 	a 	hospital 	or 	skilled 	nursing 	facility, 	as
opposed 	to 	Blue 	Cross 	which 	paid 	only 	the 	three-bed 	rate.
Further, 	Blue 	Shield 	paid 	such 	rate 	as 	well 	as 	miscellaneous
hospital 	expenses 	and 	ICU 	benefits 	in 	any 	hospital, 	while Blue
Cross 	covered 	100 	percent 	of 	such 	costs 	only 	in 	a 	contracting
hospital. 	If 	care 	were 	delivered 	in 	a 	non-contracting
hospital, 	the 	upward 	limit 	of 	Blue Cross 	coverage 	would 	be
75 	percent 	of 	the 	rate 	in 	a 	contracting 	hospital.
The 	basic 	surgical 	coverage 	was 	better 	unde.r 	Blue 	Shield,
as 	was 	the 	coverage 	for 	doctors' 	visits 	to 	a 	skilled 	nursing
care 	facility, 	consulting 	physician 	care 	while 	hospitalized,
psychiatric 	care, 	ambulance, 	and 	additional 	accident 	benefits,
6

such 	as 	physical 	therapy, 	diagnostic 	services 	such 	as 	~-rays
and 	lab 	work, 	and 	dental 	care.
Major 	medical 	policy 	limits 	increased 	from 	$300,000
lifetime 	per 	insured 	under 	Blue 	Cross 	to 	$1,300,000 	under 	Blue
Shield.
Blue 	Cross 	paid 	80 	percent 	of 	customary, 	reasonable 	covered
expenses 	up 	to 	$4,000 	per 	year, 	after 	which 	it 	paid
100 	percent. 	Blue Shield 	paid 	80 	percent 	up 	to 	$1,600 	per
year, 	and 	100 	percent 	thereafter.
DISCUSSION
As 	noted 	above, 	there 	is 	no 	dispute 	over 	the 	fact 	that 	the
District 	unilaterally 	changed 	health 	insurance 	carriers 	on
November 	1, 	1980. 	Further, 	there 	is 	no 	dispute 	regarding 	the
well-established 	principle 	that 	health 	benefits 	are 	within 	the
scope 	of 	representation 	under 	EERA.2
2section 	3543.2 	provides, 	in 	pertinent 	part, 	as 	follows:
(a) 	The 	scope 	of 	representation 	shall 	be
limited 	to 	matters 	relating 	to 	wages, 	hours
of 	employment, 	and 	other 	terms 	and
conditions 	of 	employment. 	"Terms 	and
conditions 	of 	employment" 	mean 	health 	and
welfare 	benefits 	as 	defined 	by 	Section
53200, 	leave, 	transfer 	and 	reassignment
policies, 	safety 	conditions 	of 	employment,
class 	size, 	procedures 	to 	be 	used 	for 	the
evaluation 	of 	employees, 	organizational
security 	pursuant 	to Section 	3546,
procedures 	for 	processing 	grievances
pursuant 	to Sections 	3548.5, 	3548.6, 	3548.7,
and 	3548.8, 	and 	the 	layoff 	of 	probationary
7

PERB 	has 	expressly 	held 	that 	a 	change 	in 	health 	plan
carriers 	which 	affects 	benefits 	received 	by 	employees 	must 	be
negotiated. 	Oakland 	Unified 	School 	District 	(4/23/80) 	PERB
Decision 	No. 	126, 	aff'd 	Oakland 	Unified 	School 	District 	v. 	PERB
(1981) 	120 	Cal.App.3d 	1007 	[175 	Cal.Rptr. 	105].3
certificated 	school 	district 	employees,
pursuant 	to Section 	44959.5 	of 	the 	Education
Code. 	• 	• 	•
Subsection 	53200(d) 	defines 	health 	and 	welfare 	benefits
as 	••• 	any 	one 	or 	more 	of 	the 	following: 	hospital, 	medical,
surgical, 	disability, 	or 	related 	benefits 	including, 	but 	not
limited 	to, 	medical, 	dental, 	life, 	and 	income 	protection
insurance 	or 	benefits, 	whether 	provided 	on 	an 	insurance 	or 	a
service 	basis 	• 	• 	•
3we 	note 	that 	private 	sector 	cases 	are 	in 	accord 	on 	this
issue. 	Thus, 	in Oakland, 	supra, 	at 	p. 	8, 	fn. 	7, 	PERB 	stated
In 	cases 	arising 	under 	the 	National 	Labor
Relations 	Act 	(hereafter 	NLRA) 	(29 	U.s .c.
sec. 	151 	et 	seq.), 	courts 	have 	found 	that 	a
change 	in 	the 	identity 	of 	the 	carrier 	or
administrator 	of 	a 	health 	insurance 	plan 	is
negotiable 	if 	that 	change 	affects 	the
benefits 	of 	employees. 	E.g., 	Keystone
Consolidated 	Industries 	v. 	NLRB 	(7th Cir.
1979) 	606 	F.2d 	171 	[102-LRRM_ 2664]; 	Oil
Workers 	(OCWA) 	v. 	NLRB 	(D .. C. 	Cir. 	1976) 	547
F.2d 	575 	[92 LRRM 	3059]; 	Connecticut 	Light 	&
Power 	Co. 	v. 	NLRB 	(2d Cir. 	1973) 	476 	F.2d
1079 	[82 LRRM 	3121]; 	Bastian-Blessing 	v.
NLRB 	(6th Cir •. 1973) 	474 	F.2d 	49 	[82 	L_RRM
2689]. 	The 	Michigan 	Court 	of Appeals,
following 	NLRA 	cases, 	found 	the 	identity 	of
an 	insurance 	carrier 	to 	be 	a 	mandatory
subject -of - bargaining· 	under 	the Michigan
Public Employment 	Relations 	Statute 	(Mich.
Comp. 	L.aws 	sec. 	423.201 	et 	seq.) 	when 	the
identity of 	the 	carrier 	has 	an 	effect 	on 	the
benefits. 	Roseville 	v. 	Firefighters 	(1974)
220 	N.W.2d 	147 	[88 	LRRM 	2315].
8

In 	affirming 	PERB's 	Oakland 	decision, 	the 	Court 	of Appeals
held 	that 	where 	a 	change 	in 	carriers 	has 	a 	material 	and
significant 	effect 	or 	impact 	upon 	terms 	and 	conditions 	of
employment, 	it 	is 	negotiable.
The 	District 	argues 	that 	the 	change 	in 	carriers 	from 	Blue
Cross 	to 	Blue Shield 	resulted 	in 	coverage 	changes 	which 	were
de 	minimus, 	and 	therefore 	did 	not 	amount 	to 	a 	"change" 	in 	the
collective 	negotiating 	sense. 	The 	District's 	argument 	that 	the
effect 	on 	health 	benefits 	was 	de 	minimus 	must 	be 	rejected 	on
these 	facts.
First, 	it 	is 	clear 	from 	the 	far-reaching 	improvements 	in
coverage 	levels 	noted 	above 	that 	the 	change 	to 	Blue 	Shield
resulted 	in 	a 	substantial 	and 	material 	change 	in 	benefits.
The 	District 	argues 	that 	Oakland 	is 	distinguishable 	because
there 	the 	change 	amounted 	to 	a 	decrease 	in 	benefits, 	whereas
the 	instant 	case 	involves 	an 	increase. 	While 	we 	agree 	that
there 	is 	a 	factual 	difference 	between 	the 	cases, 	we 	disagree
that 	the 	rule 	established 	in Oakland 	turns 	upon 	whether 	the
change 	in 	benefit 	levels 	is 	an 	increase 	or 	a 	decrease. 	Rather,
Oakland 	stands 	for 	the 	proposition 	that 	as 	long 	as 	the 	change
in 	carriers 	materially 	and 	substantially 	affects 	health
benefits 	it 	cannot 	be 	undertaken 	unilaterally.
The 	District 	cites 	no 	case 	for 	the 	dubious 	proposition 	that
an 	employer 	is 	free 	to 	unilaterally 	increase 	benefit 	levels.
Such 	a 	holding 	would 	enable 	employers 	to, 	in 	effect,
communicate 	to 	employees 	the 	lack 	of 	necessity 	for 	their
9

support 	for 	an 	employee 	organization. 	Employers 	are 	no 	more
free 	to 	unilaterally 	increase 	benefit 	levels 	than 	they 	are 	to
decrease 	them. 	Autoprod. 	Inc. 	(1976) 	223 	NLRB 	773, 	779. 	If
the 	unilateral 	change 	regarding 	a 	matter 	within 	scope 	is
material, 	it 	is 	an 	unfair 	practice.
Secondly, 	as 	the ALJ 	correctly 	points 	out, 	the 	specific
coverage 	levels 	provided 	for 	are 	not 	the 	only 	aspects 	of 	health
benefits 	which 	are 	negotiable. 	The 	employees 	have 	a 	vital
interest 	in 	knowing 	that 	the 	terms 	of 	the 	health 	care 	policy
will 	be 	complied 	with 	and 	that 	the 	promised 	benefits 	will 	be
delivered 	in 	a 	timely, 	accurate, 	and 	efficient manner. 	Thus,
the 	identity of 	the 	insurer 	may 	well 	be 	as 	significant 	as 	the
specific 	benefit 	levels 	set 	forth 	in 	the 	policy. 	Indeed, 	the
Association 	had 	such 	a 	concern 	in 	this 	case, 	which 	was 	not
dealt 	with 	satisfactorily 	prior 	to 	the 	unilateral 	change.
A change 	to 	a 	less 	well 	established 	carrier, 	or 	one 	which
is 	less 	reliable 	or 	less 	able 	to 	perform, 	would 	result 	in 	a
materially 	lower 	quality of 	health 	benefits 	for 	employees, 	even
if 	the 	policies 	were 	facially 	identical. 	Under 	any 	such
circumstances, 	a 	unilateral 	change 	of 	carrier 	identity would 	in
and 	of 	itself 	materially 	affect 	health 	care 	benefits, 	and 	thus
would 	violate 	EERA.
Waiver
The 	District 	next 	contends 	that 	even 	if 	the 	change 	in
carriers 	was 	an 	unfair 	practice 	as 	a 	threshold 	matter, 	the
Association 	waived 	its 	right 	to 	negotiate 	over 	it.
10

PERB, 	in 	accordance 	with 	general 	labor 	law 	principles, 	has
held 	that 	waiver 	of 	the 	statutory 	right 	to 	negotiate 	a 	matter
within 	scope must 	be 	clear 	and 	unequivocal, 	and 	will 	not 	be
inferred. 	See, 	in 	this 	regard, 	Amador 	Valley Joint 	Union High
School 	District 	(10/2/78) 	PERB 	Decision No. 	74, 	Davis 	Unified
School 	District, 	et 	al. 	(6/19/80) 	PERB 	Decision No. 	116,
San Mateo City School 	District 	(5/20/80) 	PERB 	Decision No. 	129,
Solano 	County Community College 	District 	(6/30/82) 	PERB
Decision Nq. 	219, 	Rose 	Arbor Manor 	(1979) 	242 	NLRB 	795.
An 	example 	of 	explicit 	waiver 	of 	the 	statutory 	right 	to
negotiate 	over 	a 	change 	in 	carriers 	which 	materially 	affects
health 	benefits 	is 	contained 	in 	the 	1977-78 	agreement, 	which
states 	that 	the 	District" ••• 	shall 	retain 	the 	right 	to
select 	the 	insurance 	carrier." 	In 	the 	1978-79 	agreement, 	the
waiver 	was 	absent, 	and 	Blue 	Cross 	was 	named. 	Additionally, 	a
specific cap 	was 	placed 	upon 	the 	amount 	of 	the 	District's
contribution 	for 	health 	benefits. 	The 	District 	argues 	that
when 	the 	1979 	amendment 	was 	negotiated, 	it 	regained 	the 	right
to 	select 	the 	insurance 	carrier 	unilaterally 	in 	exchange 	for
its 	agreement 	to 	pay 	100 	percent 	of 	the 	insurance 	premium, 	with
no 	dollar 	cap. 	It 	argues 	that 	the 	fact 	that 	the 	identity 	of
the 	carrier 	is 	not 	specified 	in 	the 	9/19/79 	amendment 	evidences
a 	clear 	and 	unequivocal 	waiver 	of 	the 	right 	to 	negotiate
carrier 	identity, 	because 	it 	replaced 	language 	which 	did 	name
the 	carrier. 	However, 	the 	express 	language 	of 	the 	9/19/79
11

amendment 	does 	not 	provide 	such 	a 	waiver. 	It 	is 	silent 	on 	the
carrier's 	identity, 	or 	on 	the 	right 	of 	either 	party 	to
determine 	such 	identity. 	Contractual 	silence 	on 	a 	matter
within 	scope 	will 	not 	be 	held 	a 	waiver. 	As 	the 	Court 	stated 	in
Oakland, 	supra:
[T]he 	statutory 	right 	to 	press 	unfair
practice 	claims 	is 	preserved 	where 	a
subsequent 	contract 	is 	silent 	on 	an 	issue
previously 	in 	dispute 	(Timken Roller 	Bearing
Company 	v. 	NLRB 	(6th 	Cir. 	1963) 	325 	F.2d 	746
[2 .A.L.R.3d 	868], 	relying 	on 	National 	Labor
~elations 	Board 	v. 	J. 	H. 	Allison 	Co. 	(6th
Cir. 	1948) 	165 	F.2d 	766 	[3 A.L.R.2d 	990]).
As 	noted 	above, 	waiver 	of 	a 	statutory 	negotiating 	right 	will
not 	be 	inferred. 	It 	is 	clear 	that 	the 	parties 	knew 	how 	to
phrase 	explicit 	waiver 	language, 	as 	is 	evidenced 	by 	the 	1977-78
clause 	which 	expressly 	stated 	that 	the 	employer 	retained 	the
right 	to 	select 	the 	insurance 	carrier.
We 	further 	reject 	the 	District's 	argument 	that 	the 	fact
that 	the 	Association 	initially 	attempted 	to 	insert 	the 	name
"Blue 	Cross" 	in 	the 	9/19/79 	amendment 	and 	subsequently 	withdrew
that 	proposal 	constituted 	a 	waiver. 	The 	mere 	fact 	that 	an
employee 	organization 	drops 	a 	contract 	proposal 	during 	the
course 	of 	negotiations 	does 	not 	indicate 	that 	it 	has 	waived 	its
negotiating 	rights 	thereon. 	Los 	Angeles 	Community 	College
District 	(10/18/82) 	PERB 	Decision No. 	252, 	citing 	Beacon 	Piece
Dyeing 	and 	Finishing 	Co. 	(1958) 	121 	NLRB 	1953. 	As 	we 	stated 	in
Los 	Angeles 	Community College 	District, 	supra, 	pp. 	13-14:
12

Where, 	during 	negotiations, 	a 	union 	attempts
to 	improve 	upon 	or, 	as 	in 	this 	case, 	to
codify 	the 	status 	quo 	in 	the 	contract 	and
fails 	to 	do 	so, 	the 	status 	quo 	remains 	as 	it
was 	before 	the 	proposal 	was 	offered. 	The
union 	has 	lost 	its 	opportunity 	to 	codify 	the
matter, 	it 	has 	failed 	to make 	the 	matter
subject 	to 	the 	contract's 	enforcement
procedures 	or 	to 	gain 	any 	other 	benefit 	that
might 	have 	accrued 	to 	it 	if 	its 	effort 	had
succeeded •••• 	But 	the 	union 	has 	not
relinquished 	its 	statutory 	right 	to 	reject 	a
management 	attempt 	to 	unilaterally 	change
the 	status 	quo 	without 	first 	negotiating
with 	the 	union. 	In 	a 	sentence, 	by 	dropping
its 	demand, 	the 	union 	loses 	what 	it 	sought
to 	gain, 	but 	it 	does 	not 	thereby 	grant
management 	the 	right 	to 	subsequently
institute 	any 	unilateral 	change 	it 	chooses.
A contrary 	rule 	would 	both 	discourage 	a
union 	from making 	proposals 	and 	management
from 	agreeing 	to 	any 	proposals 	made,
seriously 	impeding 	the 	collective 	bargaining
process. 	Beacon Piece, 	supra.
The 	District's 	argument 	that 	a 	comparison 	of 	the 	language
of 	the 	1978~79 	contract 	and 	the 	9/19/79 	amendment 	demonstrates
that 	it 	agreed 	to 	pay 	100 	percent 	of 	the 	insurance 	premium 	in
exchange 	for 	the 	right 	to 	unilaterally 	select 	the 	carrier 	is
rejected. 	As 	noted 	above, 	the 	District's 	superintendent 	and
chief 	negotiator 	for 	that 	contract 	testified 	expressly 	that 	the
District 	did 	not 	propose 	the 	provision 	that 	it 	would 	pay
100 	percent 	of 	the 	health 	insurance 	premium 	as 	a 	quid 	pro 	quo
for 	an Association 	waiver 	on 	carrier 	identity.
Because 	neither 	the 	express 	contractual 	language 	of 	the
September 	19, 	19.79 	amendment 	nor 	the 	testimony 	establishes 	a
waiver, 	the 	Board 	rejects 	this 	waiver 	argument.
13

The 	District 	further 	argues 	that 	the 	Association, 	through
its 	chief 	negotiator 	David Bates, 	expressly 	agreed 	to 	the
switch 	to Blue 	Shield 	during 	the 	1980 	negotiations.
At 	most, 	the 	facts 	as 	summarized 	above 	establish 	that 	Bates
told 	the 	District 	that 	he 	was 	not 	opposed 	to 	the 	switch 	so 	long
as 	the 	Association 	was 	satisfied 	that 	existing 	benefit 	levels
would 	be 	maintained. 	However, 	he 	also 	expressed 	concerns 	about
Blue 	Shield, 	and 	made 	any 	agreement 	conditional 	upon 	the
Association 	satisfying 	itself 	regarding 	those 	potential
problems. 	The 	record 	does 	not 	reflect 	that 	such 	condition 	was
satisfied 	prior 	to 	the 	unilateral 	change 	of 	carrier 	on
November 	l,_ 1980.
Even 	if 	Bates' 	acquiescence 	were 	not 	conditional, 	it
occurred 	in 	the 	context 	of 	negotiations 	for 	a 	total 	agreement,
which 	were 	not 	concluded 	prior 	to 	the 	unilateral 	change.
For 	the 	reasons 	set 	forth 	above, 	we 	find 	that 	the 	District
failed 	to 	establish 	the 	existence 	of 	a 	clear 	and 	unequivocal
waiver 	by 	the 	Association 	of 	its 	right 	to 	negotiate 	over 	the
identity of 	the 	health 	plan 	carrier. 	We 	thus 	reject 	the
District's 	waiver 	defense.
The 	District 	engaged 	in 	a 	unilateral 	change 	regarding 	a
matter 	within 	scope. 	It 	thus 	violated 	subsection 	3543.S(c)
and, 	concurrently, 	3543.S(a) 	and 	(b). 	San Francisco Community
College 	District 	(10/12/79) 	PERB 	Decision No. 	105.
14

ORDER
Upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law,
and 	the 	record 	as 	a 	whole, 	and 	pursuant 	to 	section 	3541.5(c),
it 	is 	hereby 	ORDERED 	that 	the 	Palo Verde 	Unified 	School
District 	board 	of 	trustees, 	superintendent, 	and 	their 	various
agents 	shall:
A. 	CEASE 	AND 	DESIST 	FROM:
(1) 	Failing 	and 	refusing 	to 	meet 	and 	negotiate 	in 	good
faith 	with 	the 	Palo Verde 	Teachers Association, 	CTA/NEA, 	the
exclusive 	representative 	of 	its 	certificated 	employees, 	by
unilaterally 	changing 	the 	identity 	of 	the 	health 	insurance
carrier 	for 	unit 	employees;
(2) 	Denying 	to 	the 	Palo Verde 	Teachers Association,
CTA/NEA 	rights 	guaranteed 	to 	it 	by 	the 	Educational Employment
Relations 	Act;
(3) 	Interfering 	with 	employees 	in 	their 	exercise 	of
rights 	guaranteed 	to 	them 	by 	the 	Educational Employment
Relations 	Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTION:
(1) 	No 	later 	than 	thirty-five 	(35) 	days 	after 	service
of 	this 	Decision, 	prepare 	and 	post 	copies 	of 	the 	Notice 	to
Employees 	attached 	as 	an 	appendix 	hereto, 	signed 	by 	an
authorized 	agent 	of 	the 	employer. 	Such 	posting 	shall 	be
maintained 	for 	at 	least 	thirty 	consecutive 	workdays 	at 	the
employer's 	headquarters 	office 	and 	at 	all 	locations 	where
15

notices 	to 	certificated 	employees 	are 	customarily 	posted. 	Such
Notices 	must 	not 	be 	reduced 	in 	size, 	and 	reasonable 	steps 	shall
be 	taken 	to 	insure 	that 	they 	are 	not 	defaced, 	altered, 	or
covered 	by 	any 	material;
(2) 	Written 	notification 	of 	the 	actions 	taken 	to
comply 	with 	this 	Order 	shall 	be 	made 	to 	the 	regional 	director
of 	the 	Public Employment 	Relations 	Board 	in 	accordance 	with
his/her 	instructions.
Members 	Jaeger 	and 	Morgenstern 	joined 	in 	this 	Decision.
16

APPENDIX
NOTICE 	TO EMPLOYEES
POSTED BY 	ORDER OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After 	a 	hearing 	in 	unfair 	practice 	Case 	No. 	LA-CE-1306 	in
which 	all 	parties 	had 	the 	right 	to 	participate, 	it 	has 	been
found 	that 	Palo Verde 	Unified 	School 	District 	violated 	the
Educational Employment 	Relations Act 	by 	failing 	and 	refusing 	to
meet 	and 	negotiate 	with 	the 	Palo Verde 	Teachers Association,
CTA/NEA 	with 	respect 	to 	the 	identity 	of 	the 	health 	insurance
carrier. 	It 	was 	further 	found 	that 	the 	Palo Verde 	Unified
School 	District 	denied 	to 	Palo Verde 	Teachers Association 	the
right 	to 	represent 	its 	members, 	and 	interfered 	with 	employees
in 	the 	unit 	represented 	by 	the 	Palo Verde Teachers Association
in 	violation 	of 	the 	Educational Employment 	Relations 	Act. 	As 	a
result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to 	post 	this
notice 	and 	we 	will 	abide 	by 	the 	following: 	We 	will
CEASE AND 	DESIST 	FROM:
1. 	Failing 	and 	refusing 	to 	meet 	and 	negotiate 	in 	good
faith 	by making 	unilateral 	changes 	in 	the 	identity 	of 	the
health 	insurance 	carrier 	for 	employees 	within 	the 	negotiating
unit;
2. 	Denying 	to 	Palo Verde 	Teachers Association, 	CTA/NEA
rights 	guaranteed 	by 	the 	Educational Employment 	Relations Act
including 	the 	right 	to 	represent 	its 	members; 	and
3. 	Interfering 	with 	employees 	because 	of 	the 	exercise 	of
rights 	guaranteed 	by 	the 	Educational Employment 	Relations 	Act.
Dated: 	PALO VERDE 	UNIFIED 	SCHOOL 	DISTRICT
By:
Authorized 	Representative
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT MUST 	REMAIN 	POSTED 	FOR
30 	CONSECUTIVE 	WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND MUST 	NOT
BE 	DEFACED, 	ALTERED OR COVERED WITH 	ANY 	OTHER MATERIAL OR
REDUCED 	IN 	SIZE.

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
PALO VERDE 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
PALO VERDE 	UNIFIED SCHOOL 	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
____________________ )
Unfair 	Practice
Case 	No. 	LA-CE-1306
PROPOSED 	DECISION
(7/12/82)
Appearances: 	David 	William Bates 	for 	Palo Verdes 	Teachers
Association1 	Ronald 	C. 	Ruud 	(Atkinson, 	Andleson, 	Loya, 	Ruud,
and 	Romo) 	for 	Palo Verde 	Unified 	School 	District.
Before 	Terry 	Filliman, 	Administrative 	Law 	Judge.
PROCEDURAL 	HISTORY
In 	this 	case 	the 	exclusive 	representative 	charges 	the
employer 	with 	unilaterally 	changing 	the 	carrier 	of 	employee
health 	insurance. 	The 	employer 	contends 	that 	the 	identity 	of
the 	carrier 	is 	not 	within 	scope 	because 	the 	change 	did 	not
result 	in 	a 	loss 	of 	employee 	benefits. 	It 	also 	claims 	that 	the
change 	was 	authorized 	by 	the 	contract 	or 	by 	the 	Association's
actions.
On 	February 	5, 	1981, 	~he 	Palo Verde 	Teachers 	Association,
CTA/NEA 	(hereafter 	Association) 	filed 	an 	unfair 	practice 	charge
against 	the 	Palo Verde 	Unified 	School 	District 	(hereafter
District) 	alleging 	violation 	of 	Government 	Code
section 	3543.S(a),(b) ,(c),(d),(e) 	by 	unilaterally 	switching

from 	Blue Cross 	to 	Blue 	Shield 	health 	insurance 	carrier. 	On
February 	20, 	1981, 	the 	District 	filed 	a 	timely 	answer. 	A
settlement 	conference 	was 	held 	without 	success. 	The 	Board
issued 	its 	complaint 	and 	a 	formal 	hearing 	was 	held 	on April 	7,
1981 	at 	Blythe, 	California. 	At 	the 	conclusion 	of 	the 	hearing,
the 	parties 	stipulated 	to 	place 	the 	case 	in 	abeyance 	until 	the
completion 	of 	factfinding. 	By 	letter 	of July 	20, 	1981, 	the
Association 	reactivated 	the 	case 	and 	proposed 	a 	briefing
schedule. 	Upon 	submission 	of 	post-hearing 	briefs, 	the 	matter
was 	submitted 	on 	December 	15, 	1982. 	In 	its 	closing 	brief, 	the
Association 	withdrew 	the 	alleged 	violation 	of 	section 	3543.5(d).
FINDING OF 	FACT
The 	Palo Verde 	Unified 	School 	is 	an 	employer 	and 	the
Association 	is 	the 	exclusive 	representative 	of 	certificated
employees 	within 	the 	meaning 	of 	the 	Education Employment
Relations 	Act 	(hereafter 	EERA or 	Act) 1 •
Unilateral 	Change 	in 	Insurance 	Carriers 	- 	November 	1, 	1980
It 	is 	undisputed 	that 	the 	District 	changed 	its 	insurance
carrier 	from Blue Cross 	to 	Blue 	Shield 	on 	November 	1, 	1980.
The 	change 	resulted 	in 	a 	significant 	improvement 	in 	health
insurance 	benefits 	to 	employees 	and 	a 	$15,000 	cost 	saving 	to
lThe 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	All 	references 	herein 	are 	to 	the 	Government Code 	unless
otherwise 	noted.
2

the 	District. 	Norm 	Shaman, 	fringe 	benefits 	advisor, 	testified
as 	an 	expert 	witness 	comparing 	the 	Blue 	Cross 	and 	Blue 	Shield
contracts. 	Blue Shield 	provided 	better 	insurance 	coverage 	in
11 	benefit 	areas. 	Following 	the 	submission 	of 	several
amendments 	to 	its 	plan 	Blue 	Shield 	provided 	no 	decreases 	from
prior 	coverage. 2 	The 	new 	insurer 	guaranteed 	no 	loss 	of
benefits 	as 	a 	result 	of 	changing 	carriers.
The 	change 	was 	implemented 	by 	the 	District 	agreeing 	to 	a
contract 	with 	Blue 	Shield. 	In 	October 	1980, 	rumors 	spread
among 	certificated 	employees 	that 	the 	District 	was
contemplating 	the 	change. 	On 	October 	28, 	Association 	President
Scott Wiseman 	wrote 	to 	Superintendent 	Harry Roberts 	seeking
clarification 	of 	the 	rumor. 	Wiseman 	stated 	that 	the
Association 	believed 	the 	coverage 	by Blue 	Cross 	to 	be 	mandated
by 	the 	terms 	of 	the 	recently 	expired 	contract 	and 	should
continue 	in 	effect 	until 	a 	sucessor 	contract 	was 	negotiated.
The 	District 	notified 	affected 	employees 	on 	November 	4 	that
2Improvement 	was 	made 	in 	coverages 	for 	the 	daily 	room
rate, 	hospital 	miscellaneous 	expenses, 	intensive 	coverage 	care,
skilled 	nursing 	facility 	benefits, 	surgical 	benefits, 	doctor
visits, 	out-patient 	and 	x-ray 	benefits, 	psychiatric 	benefits,
ambulance 	benefits, 	additional 	accident 	expense, 	major 	medical
benefits, 	and 	stop 	loss. 	The 	Blue 	Cross 	policy 	features 	the
indirect 	benefit 	of 	subrogation 	not 	allowed 	by Blue 	Shield.
Subrogation 	is 	not 	found 	to 	be 	a 	significant 	benefit 	because
the 	gain 	to 	a 	single 	employee 	by 	lawsuit 	results 	in 	a 	direct
rate 	increase 	to 	other 	members 	of 	the 	District 	plan.
3

they 	could 	either 	switch 	to 	Blue Shield 	or 	waive 	insurance
coverage.
While 	the 	District 	notified 	a 	District 	employee 	insurance
study 	group 	on 	October 	31, 	that 	it 	intended 	to 	change 	carriers,
it 	did 	not 	notify 	the 	Association 	directly 	of 	its 	decision
prior 	to 	taking 	action.
NEGOTIATIONS 	HISTORY
The 	parties 	operated 	under 	three 	collective 	bargaining
agreements 	between 	January 	1977 	and 	June 	30, 	1980. 	Employees
were 	working 	without _a 	contract 	when 	the 	change 	in 	carriers
occurred 	on 	November 	1, 	1980. 	The 	negotiation 	history 	and
language 	of 	the 	three 	contracts 	is 	significant 	to 	determine
whether 	the 	District 	had 	agreed 	to 	provide 	insurance
specifically 	from Blue Cross 	or 	only 	to 	provide 	a 	specified
level 	of 	benefits.
1977-78 	Contract
The 	parties 	initial 	agreement 	under 	the 	EERA 	existed
between 	January 	1977 	and 	June 	30, 	1978. 	During 	negotiations,
the 	parties 	discussed 	both 	the 	identity of 	the 	insurance
carrier 	and 	the 	district 	level 	of 	contribution. 	The 	contract
required 	the 	district 	to 	pay 	for 	health 	and 	dental 	insurance 	up
to 	a 	specified 	dollar 	amount. 	It 	did 	not 	mention 	Blue Cross
and 	specifically 	authorized 	the 	District 	to 	select 	the
insurance 	carrier.
4

Article 	16. 	Salary 	and 	Benefits
4. 	(a) 	• 	the 	District 	shall 	retain 	the
right 	to 	select 	the 	insurance 	carrier.
1978-79 	Contract
The 	parties 	held 	several 	negotiation 	sessions 	during 	the
spring 	and 	summer 	of 	1978. 	The 	passage 	of 	Proposition 	13 	in
June 	1978 	left 	the 	status 	of 	school 	financing 	uncertain. 	No
discussion 	of 	salary or 	fringe 	benefits 	was 	included 	in 	the
sessions.
The 	1977-78 	contract 	expired 	in mid-summer 	without 	an
enactment 	of 	a 	successor 	contract. 	During 	a 	September 	5, 	1978
session 	District 	negotiator 	David 	Miller 	presented 	a 	verbal
offer 	that 	the 	District 	would 	continue 	"Blue Cross" 	coverage 	in
the 	new 	contract. 	An 	article 	on 	salaries 	and 	benefits 	was
developed 	out 	of 	the 	September 	5 meeting. 	The 	language 	for 	the
article 	was 	drafted 	during 	the 	mediation 	session. 	The 	article
extended 	health 	and 	dental 	coverage 	to 	family 	members 	and
provided 	employee 	vision 	coverage. 	It 	specifically 	listed
"Blue Cross" 	as 	the 	health 	insurance 	carrier.
Article 	14 	Salary 	and 	Benefits 	provided 	in 	part:
2. 	(a) 	Up 	to 	$104.34 	tenthly 	for 	Blue
Cross 	family 	coverage.
The 	contract 	was 	adopted 	on 	December 	11, 	1978 	and 	was
effective 	until 	June 	30, 	1979.
1979-80 	Contract
The 	parties 	started 	negotiating 	in March 	1979 	for 	a 	new
contract. 	On June 	5, 	1979 	they 	extended 	the 	1978-79 	contract
5

through 	June 	30, 	1980 	with 	the 	understanding 	that 	1979-80
benefit 	levels 	would 	be 	revised 	through 	negotiations 	as 	soon 	as
updated 	insurance 	data 	was 	available. 	Article 	14.2 of 	the 	June
5th 	agreement 	contained 	identical 	language 	on 	insurance 	plans
to 	the 	1978-79 	contract 	except 	that 	the 	District 	increased 	its
contribution 	by 	approximately 	$40 	per 	year.
On September 	19, 	1979, 	the 	parties 	met 	to 	negotiate 	fringe
benefits. 	District 	Superintendent 	Roberts 	presented 	a 	draft
proposal. 	The 	proposal 	stated:
(1) 	Amend 	article 	section 	14.2 	to 	read:
effective 	for 	the 	1979/80 	school 	year, 	the
District 	agrees 	to 	pay 	the 	full 	payment 	of
premiums 	for 	group medical, 	dental, 	and
vision 	insurance 	plans 	without 	reduction 	of
benefits.
(2) 	The Association 	agrees 	to 	continue 	in
an 	advisory 	capacity, 	the 	cooperative 	study
of 	alternative 	benefit 	plans 	in 	an 	effort 	to
reduce 	the 	total 	premium 	cost 	of 	package
without 	a 	reduction 	in 	benefits.
(3) 	The Association 	agrees 	to 	consider 	an
increase 	in 	the 	deductable 	for 	the 	family
health 	plan 	••• 	in 	the 	event 	that 	a 	lower
premium package 	is 	not 	available. 	(Emphasis
added.)
Sometime 	after 	June 	5, 	1979, 	the 	District 	prepared 	the
1979-80 	contract 	incorporating 	the 	1978-79 	contract 	with 	minor
changes. 	The 	changes 	included 	four 	appendices 	listing 	various
salary 	schedules 	and 	specific 	insurance 	benefits. 	Appendix 	C
specified 	the 	health 	care 	coverages 	provided 	by 	the 	Blue 	Cross
basic 	plan. 	The 	contract 	including 	the 	appendices 	was
distributed 	to 	all 	certificated 	employees. 	After 	the
6

September 	19 	amendment, 	the 	salary 	and 	fringe 	benefit 	article
was 	attached 	to 	the 	prior 	contract 	package 	and 	made 	available
to 	employees.
In 	sum, 	the 	agreement 	in 	effect 	prior 	to 	the 	District
change 	in 	carriers 	consisted 	of 	(1) 	the 	text 	of 	the 	1978-79
contract 	with 	minor 	language 	and 	substantive 	changes 	extending
through 	1980, 	(2) 	appendices 	to 	the 	1979-80 	contract 	describing
Blue 	Cross 	fringe 	benefits, 	and 	(3) 	the 	insurance 	and 	the
fringe 	benefit 	amendment 	executed 	on September 	19, 	1979. 	The
parties 	dispute 	both 	the 	purpose 	of 	the 	September 	19 	session 	on
fringe 	benefits 	and 	the 	meaning 	of 	the 	contract 	amendment 	which
resulted 	from 	negotiations.
Association 	Interpretation
At 	the 	session 	the 	Association 	spokesman 	attempted 	to 	have
Blue Cross 	named 	in 	the 	amendment 	but 	the 	superintendent
opposed 	changing 	the 	language 	of 	the 	typed 	draft. 	No 	District
representative 	explained 	the 	District's 	intended 	meaning 	of 	the
draft 	at 	the 	session. 	The 	Association 	did 	not 	further 	pursue
adding 	Blue Cross 	to 	the 	draft 	because 	it 	believed 	that 	the
amendment 	was 	a 	continuation 	of 	the 	1979-80 	contract 	which
included 	Blue Cross 	because 	the 	draft 	was 	being 	attached 	to
that 	contract. 	Joyce 	Stinson, 	association 	president, 	also
testified 	that 	their 	belief 	was 	based 	upon 	the 	fact 	that 	a
specific 	waiver 	had 	been 	included 	in 	the 	1977 	agreement 	and 	no
such 	language 	was 	present 	in 	the 	draft.
7

Finally, 	the 	Association 	believed 	the 	amendment 	was 	not 	an
attempt 	to 	change 	carriers 	because 	the 	Blue 	Cross 	policy
expired 	within 	10 	days 	and 	all 	parties 	agreed 	it 	was
practically 	too 	late 	to 	change 	that 	year.
Stinson 	testified 	that 	the Association 	believed 	paragraph 	1
to 	mean 	that 	the 	District 	would 	continue 	with 	the 	present
coverage 	and 	specific 	carriers 	for 	medical, 	dental, 	and 	vision
insurance 	and 	would 	pick 	up 	the 	increase 	in 	payments. 	She
testified 	that 	the 	Association 	believed 	the 	language, 	"The
District 	agrees 	to 	pay 	the 	full 	payment 	of 	premiums 	for 	group
medical 	.•• 	plan 	without 	reduction 	of 	benefits," 	to mean 	a
commitment 	to 	retain 	Blue 	Cross 	specifically 	because 	Blue 	Cross
was 	a 	well 	known 	insurance 	carrier, 	i.e. 	a 	benefit.
The 	Association 	construed 	paragraph 	2, 	"the Association
agrees 	to 	continue 	in 	an 	advisory 	capacity 	••• 	"as 	not
waiving 	the 	District's 	obligation 	to 	bargain 	over 	the 	final
selection 	of 	carriers. 	The 	belief 	was 	on 	the 	basis 	that 	the
employee 	insurance 	committee 	was 	to 	include 	classified
employees 	and 	management 	employees 	in 	an 	advisory 	capacity 	and
was 	not 	a 	substitute 	for 	bargaining.
The 	Association 	interpreted 	paragraph 	3 not 	to 	constitute 	a
waiver, 	including 	the 	language, 	"The Association 	agrees 	to
consider 	an 	increase 	in 	the 	deductible 	••• 	in 	the 	event 	that
a 	lower 	premium package 	is 	not 	available". 	They 	considered
that 	both 	parties 	would 	look 	at 	other 	insurance 	carriers 	and 	if
8

a 	joint 	decision 	could 	not 	be 	reached 	the Association 	would
consider 	a 	reduction 	in 	the 	current 	Blue 	Cross 	package.
District 	Interpretation
It 	is 	the 	District's 	position 	that 	the 	amendment 	to
section 	14.2 	was 	a 	substitute 	for 	the 	similar 	section 	in 	the
1979-80 	contract. 	In 	effect 	the 	amendment 	removed 	the 	specific
reference 	to 	Blue Cross 	and 	authorized 	the 	District 	to 	name 	the
insurance 	carrier.
Superintendent 	Roberts 	testified 	that 	paragraph 	1 	reflects
the 	District 	prerogative 	to 	select 	insurance 	carriers 	as 	long
as 	it 	did 	not 	reduce 	the 	benefits 	that 	would 	be 	provided. 	The
District 	obligation 	to 	pick 	up 	the 	total 	premium 	for 	the 	first
time 	was 	interrelated 	to 	the 	District's 	authority 	to 	reduce
costs 	by 	selecting 	a 	less 	expensive 	carrier 	providing 	the 	same
benefits. 	Superintendent 	Roberts 	testified 	that 	he 	didn't
believe 	that 	the 	District's 	increased 	contribution 	under
paragraph 	1 	was 	a 	trade 	off 	for 	the 	right 	to 	select 	an
insurance 	carrier 	because 	he 	believed 	the District 	always 	had
the 	right 	under 	prior 	contracts 	even 	though 	the 	carrier 	was
named.
1980 	Negotiations
The 	existing 	contract 	expired 	on June 	30, 	1980. 	The
District made 	an 	initial 	proposal 	to 	change 	from Blue Cross 	to
Blue 	Shield. 	The 	parties 	discussed 	the 	designation 	of 	health
insurance 	carrier 	during 	negotiation 	sessions. 	The 	record 	is
9

somewhat 	confusing 	over 	whether 	the 	District 	was 	intending 	to
discuss 	the 	carrier 	or 	the 	level 	of 	benefits 	in 	that 	the 	term
Blue Cross 	was 	used 	synonymously 	with 	the 	current 	level 	of
benefits 	provided 	to 	employees.
The 	Association 	negotiator 	David 	Bates 	stated 	during
negotiations 	that 	the 	Association 	would 	not 	object 	to 	changing
the 	insurance 	carrier 	so 	long 	as 	the 	benefits 	were 	equal 	or
better 	than 	those 	provided 	by 	Blue 	Cross. 	No 	tentative
agreement 	was 	executed. 	It 	is 	apparent 	that 	Bates' 	statement
was 	meant 	to 	result 	in 	a 	future 	agreement 	as 	a 	result 	of
negotiations. 	The 	Association 	did 	not 	construe 	it 	as 	an
agreement 	at 	the 	time 	because 	they 	were 	currently 	studying
proposals 	by 	competing 	insurance 	carriers.
The 	District 	made 	alternative 	salary 	and 	fringe 	benefit
offers. 	It 	expected 	to 	save 	$15,000 	for 	1980-81 	if 	a 	change 	to
Blue 	Shield 	occurred. 	The 	District 	offered 	a 	Blue 	Shield
health 	plan 	combined 	with 	a 	7 	percent 	salary 	increase 	for
teachers 	or 	the 	existing 	Blue 	Cross 	plan 	combined 	with 	a
6 	percent 	salary 	increase. 	The 	Association 	proposed 	a
continuation 	of Blue 	Cross 	combined 	with 	a 	higher 	salary
increase 	than 	offered 	by 	the 	District.
During 	September 	1980, 	District Negotiator 	Ronald 	Ruud
indicated 	that 	the 	District 	believed 	the 	prior 	contract 	gave 	it
authority 	to 	unilaterally 	name 	the 	carrier.
10

Insurance Advisory Committee/Unilateral Change
No 	contract 	agreement 	had 	been 	reached 	by November 	1980.
During 	the 	spring 	of 	1980, 	the 	District 	formed 	an 	advisory
study 	group 	including 	classified 	employees, 	Association
members, 	and 	management 	employees 	to 	study 	the 	new Blue Shield
proposal. 	The 	change 	to Blue 	Shield 	was 	made 	by 	the 	District
before 	the 	committee made 	any 	recommendation.
At 	an October 	31 	meeting 	of 	the 	committee, 	the
superintendent 	implied 	that 	the 	District 	would 	be 	changing 	to
Blue 	Cross 	effective November 	1. 	On November 	4, 	the 	District
corresponded 	with 	employees 	that 	unless 	they 	authorized 	a
change 	to Blue 	Shield 	immediately 	they 	would 	waive 	insurance
coverage. 	No 	notice 	was 	given 	to 	the 	Association.
ISSUES
1. 	Did 	the 	District 	unilaterally 	change 	the 	carrier 	of
health 	insurance 	for 	its 	employees 	in 	violation 	of 	Government
Code 	section 	3543. 5 (a) , 	(b) , 	(c) 	and 	(e)?
2. 	Was 	the 	unilateral 	change 	authorized 	by 	the 	collective
bargaining 	agreement 	or 	by waiver 	of 	the 	Association?
DISCUSSION AND 	CONCLUSIONS
It 	is 	well-settled 	under 	PERB 	precident 	that 	an 	employer,
absent 	compelling 	justification, 	cannot 	change 	matters 	within
the 	scope 	of 	representation 	without 	providing 	the 	exclusive
representative 	of 	the 	employees 	affected 	by 	the 	change 	with
notice 	and 	an 	opportunity 	to 	negotiate. 	San 	Francisco
11

Community College 	District 	(10/12/79} 	PERB 	Decision No. 	105;
San 	Mateo County Community College 	District 	(6/8/79} 	PERB
Decision No. 	94; 	Pajaro Valley 	Unified 	School 	District
(5/22/78) 	PERB 	Decision No. 	51; 	NLRB 	v. 	Katz 	(1962} 	369 	U.S.
736 	[50 	LRRM 	2177].
In 	November, 	1980 	the 	District 	unilaterally 	changed 	from 	a
Blue Cross 	health 	insurance 	plan 	to 	a 	Blue Shield 	plan. 	While
the 	District 	had 	discussed 	or 	negotiated 	insurance 	benefits
with 	the Association 	during 	the 	summer 	and 	fall 	of 	1980, 	the
change 	in 	carriers 	was 	not 	a 	result 	of 	negotiations.
The 	questions 	in 	this 	case 	are 	(1) 	whether 	the 	District's
action 	in 	changing 	health 	plan 	carriers 	resulted 	in 	a 	change 	in
a 	matter 	within 	the 	scope 	of 	representation 	under 	section
3543.2 	and 	(2) 	whether 	such 	change 	was 	authorized 	by 	the
collective 	bargaining 	agreement 	or 	other 	waiver 	of 	the
Association.
Did 	the 	Change 	in Health 	Insurance 	Plans 	Fall Within 	the 	Scope
of 	Representation
The 	District's 	change 	in 	health 	insurance 	plans 	is 	within
scope 	because: 	(1) 	actual 	health 	benefits 	under 	the 	former
plan 	were 	changed; 	(2) 	the 	reputation 	of 	the 	insurer 	and/or
provider 	offering 	the 	plan 	is 	directly 	linked 	to 	health
benefits; 	and 	(3) 	a 	change 	in 	group 	insurance 	plans 	directly
impacts 	employee 	compensation.
12

Section 	3543.2 	of EERA provides:
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 	•.•
It 	is 	apparent 	that 	health 	insurance 	benefits 	fall 	within
the 	scope 	of 	representation.
In 	Oakland Unified 	School 	District 	v. 	PERB 	(1981) 	120
Cal.App.3rd 	1007, 	p. 	1012; 	[175 	Cal.Rptr. 	105] 	the Court 	of
Appeal 	found 	that 	a 	change 	in 	health 	insurance 	administrators
which 	had 	a 	"material 	and 	significant 	effect 	or 	impact 	upon 	the
terms 	and 	conditions 	of 	employment" 	was 	within 	the 	scope 	of
negotiations. 	The 	Court 	upheld 	a 	PERB 	finding 	that 	the 	change
in 	administrators 	resulted 	in 	a 	reduction 	of 	health 	insurance
benefits 	to 	employees 	because 	certain 	benefits 	were 	inherently
linked 	to 	the 	national 	identity of 	the 	former 	administrator
- 	Blue Cross.
In 	the 	present 	case, 	the 	District 	accurately 	alleges 	that
the 	change 	in 	health 	plan 	resulted 	in 	a 	significant 	improvement
in 	health 	insurance 	benefits 	to 	employees. 	Health 	insurance
coverage 	was 	improved 	because 	employee 	paid 	deductibles 	were
reduced 	in 	11 	areas 	of 	medical 	treatment 	or 	service.3
The 	threshold 	question 	is 	not 	whether 	the 	employer
increased 	benefits 	or 	decreased 	benefits 	for 	employees 	because
3see 	footnote 	2 page 	3.
13

both 	actions 	constitute 	changes 	in 	the 	existing 	conditions 	of
employment. 	Here 	changes 	in 	benefits 	clearly 	occurred.
Thus 	the 	substantial 	increase 	in 	health 	benefits 	had 	a
"material 	••• 	effect 	on 	the 	terms 	and 	conditions 	of
employment," 	supra 	Oakland 	so 	that 	the 	identity 	of 	the
insurance 	carrier 	is 	negotiable 	whenever 	resulting 	benefits 	are
substantially 	changed. 	See 	Keystone 	Consolidated 	Industries 	v.
NLRB 	(7th Circuit 	1979) 	606 	F2nd 	171 	[102 	LRRM 	2664]; 	Oil
Workers 	(OCAW) 	v. 	NLRB 	(DC 	Circuit 	1976) 	547 	F2nd 	575 	[92 	LRRM
3059]; 	Connecticut 	Light 	and 	Power 	Company 	v. 	NLRB 	(2nd 	Circuit
1973) 	476 	F2nd 	1079 	[82 LRRM 	3121]; 	Bastian-Blessing 	v. 	NLRB
(6th Circuit 	1973) 	474 	F2nd 	49 	[82 	LRRM 	2689].
As 	a 	separate 	theory, 	it 	is 	reasonable 	to 	assume 	that
employees 	have 	a 	vital 	interest 	in 	knowing 	that 	their 	health
care 	will 	be 	provided 	in 	a 	quality manner 	and 	their 	claims 	will
be 	processed 	in 	a 	timely 	fashion. 	The 	identity 	and 	reputation
of 	the 	insurer, 	administrator 	and 	health 	care 	provider 	becomes
as 	significant 	as 	the 	coverage 	negotiated. 	Thus 	the 	health
care 	plan 	becomes 	a 	condition 	of 	employment 	closely 	related 	to
health 	benefits.
Finally, 	a 	fringe 	benefit 	such 	as 	paid 	insurance 	is
actually 	a 	form 	of 	compensation. 	In 	the 	public 	school 	setting
the 	employer's 	unilateral 	decision 	to 	increase 	fringe 	benefits
necessarily 	impacts 	on 	the 	amount 	of 	money 	available 	for
negotiating 	wages. 	A change 	in 	group 	insurance 	plans 	might
hypothetically 	cost 	the 	employer 	(1) 	more, 	(2) 	an 	equal 	amount,
14

(3) 	or 	less 	than 	its 	subsidy 	of 	the 	prior 	plan. 	Expenditure 	of
either 	more 	or 	less 	funds 	for 	the 	plan 	directly 	impacts 	on 	its
ability 	to 	negotiate 	wages 	with 	employees. 	The 	fact 	that 	the
District 	made 	differing 	salary 	offers 	contingent 	upon 	which 	the
health 	plan 	was 	adopted 	supports 	the 	direct 	relationship
between 	the 	subjects.
Alleged Waivers
The 	District 	alleges 	that 	the 	Association 	waived 	its 	right
to 	object 	to 	the 	unilateral 	change 	by 	agreeing 	to 	contract
language 	authorizing 	the 	action 	or 	waived 	its 	rights 	to 	object
by 	its 	actions. 	In 	order 	to 	prove 	that 	the 	Association 	waived
its 	right 	to 	negotiate, 	the 	District 	must 	show 	either 	clear 	and
unmistakeable 	contract 	language 	or 	demonstrate 	behavior 	waiving
a 	reasonable 	opportunity 	to 	bargain 	over 	a 	decision 	not 	already
firmly 	made 	by 	the 	employer. 	San Mateo 	County 	Community
College 	District 	(6/8/79) 	PERB 	Decision 	No. 	94; 	Amador 	Valley
Joint 	Union High 	School 	District 	(10/2/78) 	PERB 	Decision
No. 	74; 	Timken 	Roller 	Bearing 	Company 	v. 	NLRB 	(6th 	Circuit
1963) 	325 	F2d 	746 	[54 LRRM 	2785]; 	NLRB 	v. 	Cone Mills 	(4th
Circuit 	1967) 	373 	F2d 	595, 	[64 	LRRM 	2536] 	citing 	the 	NLRB 	in
Caravelle 	Boat 	(1977) 	227 	NLRB 	162 	[95 	LRRM 	1003, 	1006].
PERB 	has 	stated, 	"the 	board 	and 	courts 	have 	repeatedly 	held
that 	a 	waiver 	of 	bargaining 	rights 	by 	a 	union 	will 	not 	be
lightly 	inferred, 	must 	be 	clearly 	and 	unequivicably 	conveyed."
Anaheim Union High 	School 	District 	(3/26/82/) 	PERB 	Decision
No. 	201.
15

The 	Association 	did 	not Waive 	its 	Right 	to Object 	by Contract
Where 	specific 	language 	of 	an 	agreement 	must 	be 	interpreted
to 	determine 	if 	a 	waiver 	has 	occurred, 	contract 	law 	principles
apply. 	California 	courts 	have 	repudiated 	the 	former 	"plain
meaning" 	rules 	limiting 	interpretation 	to 	the 	face 	of 	the
contract 	language 	when 	it 	appears 	to 	be 	clear. 	Currently 	even
if 	the 	language 	is 	clear, 	evidence 	of 	circumstances 	is
admissible 	if 	relevent 	to 	prove 	a 	meaning 	of 	which 	the 	contract
language 	is 	reasonably 	susceptible. 	Pacific Gas 	& Electric
Company 	v. 	G. 	W. 	Thomas 	D & 	R Company 	(1968) 	69 	Cal 	2nd 	33 	[452
Pacific 	2nd 	641], 	Summary 	of 	California Evidence 	2nd, 	Witkin,
1977 	Supplement 	section 	732A, 	page 	320.]
Additionally 	acts 	of 	the 	parties 	subsequent 	to 	execution 	of
a 	contract 	and 	before 	a 	controversy 	arises 	as 	to 	its 	effect 	may
be 	looked 	at. 	Supra, 	Summary 	of 	California Evidence 	2nd,
Witkin, 	section 	527, 	p. 	449.
The 	District 	contends 	that 	the 	deletion 	of 	the 	name
Blue 	Cross 	and 	the 	substitution 	of 	the 	term 	"group medical
insurance 	plan without 	reduction 	of 	benefits" 	in 	the
September 	1979 	amendment 	is 	clear 	language 	demonstrating 	waiver
by 	the 	Association. 	It 	argues 	the 	language 	is 	bolstered 	by 	the
Association's 	agreement 	to 	continue 	in 	an 	advisory 	capacity 	to
study 	alternative 	health 	benefit 	plans. 	It 	is 	further 	conceded
that 	the Association 	requested 	the 	inclusion 	of 	the 	name 	Blue
Cross 	in 	the 	adopted 	language 	and 	the 	proposal 	was 	rejected 	by
16

the 	District. 	In 	spite 	of 	this 	strong 	evidence 	it 	is 	found
that 	the 	waiver 	language 	is 	neither 	"clear 	nor 	unmistakeable"
when 	the 	circumstances 	surrounding 	its 	adoption 	are 	considered.
The 	September 	19th 	agreement 	was 	reached 	at 	a 	brief 	evening
session. 	No 	negotiations 	had 	occurred 	for 	100 	days. 	The
disputed 	language 	was 	contained 	in 	a 	typed 	draft 	prepared 	by
the 	District. 	The 	District 	spokesperson, 	Superintendent
Roberts, 	did 	not 	explain 	that 	the 	language 	was 	intended 	to
remove 	the 	Association's 	right 	to 	negotiate 	over 	carriers 	as
existed 	in 	the 	1978-79 	contract. 	Roberts 	testified 	that 	he 	did
not 	consider 	the 	District's 	payment 	of 	increased 	benefits 	in
the 	proposal 	to 	be 	a 	tradeoff 	for 	the 	right 	to 	select 	carriers
because 	he 	always 	thought 	the 	District 	had 	the 	right 	to 	select
an 	insurance 	carrier. 	The 	Association 	testified 	that 	despite
the 	refusal 	of 	the 	District 	to 	include 	Blue Cross 	in 	the
language, 	it 	assumed 	from 	the 	term 	"without 	reduction 	of
benefits" 	that 	the 	inherent 	benefit 	of 	a 	nationally 	known 	plan
as 	Blue 	Cross 	was 	protected.
At 	the 	time 	the 	amendment 	was 	negotiated, 	the 	parties 	were
not 	seriously 	discussing 	any 	change 	from Blue Cross 	because
renewal 	of 	that 	policy 	was 	imminent. 	While 	the 	District 	had 	at
various 	times 	discussed 	the 	increasing 	costs 	of Blue 	Cross 	and
the 	need 	to 	review 	comparable 	plans, 	no 	information 	was
presented 	at 	the 	negotiation 	session 	to 	indicate 	that 	the
language 	contemplated 	an 	actual 	change. 	Recognizing 	that 	the
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authority 	to 	change 	is 	not 	synonymous 	with 	an 	actual 	change 	in
carriers, 	it 	is 	nevertheless 	significant 	that 	the 	absence 	of 	an
ability 	of 	the 	District 	to 	change 	policies 	at 	that 	time 	gave
the 	Association 	no 	notice 	of 	the 	significance 	of 	the 	language.
An 	important 	issue 	is 	the 	effect 	of 	the 	single 	page
amendment 	to 	the 	79-80 	contract 	executed 	on September 	19. 	It
is 	clear 	that 	the 	language 	of 	the 	amendment 	superceded
article 	14 	relating 	to 	health 	and 	welfare 	benefits. 	Yet 	the
1979-80 	agreement 	was 	circulated 	to 	employees 	with 	two 	distinct
and 	conflicting 	types 	of 	attachments. 	First, 	the 	September 	19
amendment 	which 	purportedly 	eliminated 	Blue Cross 	as 	the
negotiated 	carrier. 	Secondly, 	Appendix 	C was 	attached 	which
listed 	the 	specific 	coverages 	provided 	under 	the 	Blue 	Cross
basic 	health 	service 	plan. 	Whether 	or 	not 	the 	inclusion 	of 	the
Blue Cross 	coverages 	was 	an 	administrative 	error, 	it 	gave 	unit
employees 	and 	the 	Asssociation 	a 	reasonable 	belief 	that 	the
September 	19 	amendment 	made 	no drastic 	change 	in 	the
continuance 	of 	Blue 	Cross 	coverage. 	More 	importantly, 	it 	gave
weight 	to 	the 	interpretation 	that 	the 	amendment 	did 	not 	make 	a
substantive 	change 	in 	the 	right 	to 	select 	carriers.
Finally, 	the 	District 	opened 	the 	1980 	negotiations 	by
presenting 	a 	written 	proposal 	relating 	to 	the 	negotiation 	of
insurance 	carriers. 	The 	identity 	of 	carriers 	was 	frequently
raised 	during 	the 	subsequent 	negotiations. 	The 	District's
subsequent 	conduct 	of 	negotiating 	the 	carrier 	weighs 	against 	a
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clear 	achievement 	of 	the 	right 	to 	select 	a 	carrier 	in 	the
1979-80 	contract. 	The 	District's 	argument 	that 	it 	hoped 	to
receive 	a 	concensus 	approval 	in 	the 	change 	in 	the 	selection 	of
carriers 	although 	it 	retained 	the 	right 	to 	do 	so 	unilaterally
is 	weakened 	by 	its 	actions 	in 	seeking 	to 	negotiate 	the 	subject
after 	it 	had 	supposedly 	achieved 	the 	September 	19th 	waiver.
Only 	at 	a 	time 	when 	the 	District's 	legal 	advisor 	became 	its
chief 	negotiator 	did 	it 	indicate 	at 	the 	table 	that 	it 	had
achieved 	the 	right 	to 	change 	carriers 	through 	the 	previous
negotiations.
The 	contract 	language 	indicating 	that 	the 	Association
agrees 	to 	continue 	in 	an 	advisory 	capacity 	to 	study 	alternative
health 	benefit 	plans 	is 	extremely 	difficult 	to 	interpret. 	The
very 	words 	"an 	advisory 	capacity" 	imply 	the 	waiving 	of 	certian
rights. 	Yet 	the 	Association's 	interpretation 	that 	a 	voluntary
study 	was 	necessitated 	because 	it 	had 	no 	right 	to 	bargain 	over
those 	aspects 	of 	a 	single 	plan 	which 	affected 	non-unit
employees 	is 	plausible. 	Otherwise 	the 	District 	would 	be
required 	to 	conduct 	separate 	investigations 	of 	health 	plans 	for
certificated, 	classified, 	and 	management 	employees 	prior 	to
negotiating 	with 	the 	former 	two 	groups.
Finally, 	the 	waiver 	language 	must 	be 	compared 	to 	the
Association 	waiver 	agreed 	to 	in 	the 	1977-78 	contract. 	There
the 	language 	specifically 	stated 	"the District 	shall 	retain 	the
right 	to 	select 	the 	insurance 	carrier." 	With 	a 	history 	of 	such
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clear 	language 	between 	the 	parties 	on 	the 	same 	subject, 	the
September 	19 	language 	is made 	less 	unequivocable. 	It 	is 	found
that 	under 	the 	circumstances 	and 	absent 	any 	District
communication 	of 	its 	intent, 	the 	language 	does 	not 	demonstrate
a 	"clear 	and 	unmistakeable 	waiver."
The 	Association 	did 	not 	Waive 	its 	Right 	by Action 	or 	Inaction
The 	District 	contends 	that 	David 	Bates made 	an 	oral
agreement 	during 	the 	1980 	negotiations 	that 	the 	Association
would 	accept Blue 	Shield 	if 	the 	benefits 	were 	equal 	to 	those
provided 	by Blue 	Cross.
The 	evidence 	indicates 	that 	no 	tentative 	agreement 	was
signed. 	In 	fact, 	no 	dispute 	exists 	that 	the 	statements 	were
made 	by 	Bates. 	It 	is 	reasonable 	to 	believe 	that 	the
Association's 	statements 	were 	solely 	to 	indicate 	that 	the
Association 	would 	agree 	in 	the 	future 	provided 	they 	were
assured 	that 	the 	change 	would 	create 	no 	loss 	in 	benefits. 	This
assurance 	could 	come 	only 	after 	their 	own 	study 	of 	the 	proposed
plan. 	The 	study 	was 	underway 	at 	the 	time 	although 	the
Association 	was 	not 	provided 	with 	the 	frequent 	changes 	in 	the
proposal 	offered 	by 	Blue Cross.
The 	record 	also 	fails 	to 	indicate 	that 	the 	Association
delayed 	in 	objecting 	to 	the 	change 	in 	carriers 	upon 	receiving
notice 	from 	the 	District. 	In 	October 	1980, 	the 	Association
president 	sought 	to 	verify 	rumors 	that 	a 	change 	was 	being
considered 	even 	in 	the 	absence 	of 	District 	notice. 	Although
20

the 	District 	unilaterally 	changed 	carriers 	in 	November 	1980, 	it
did 	not 	directly 	notify 	the Association 	any 	time 	prior 	to
taking 	action. 	An 	Association 	demand 	to 	negotiate 	after 	the
District 	has 	already 	taken 	the 	action 	is 	not 	required 	when 	such
requests 	would 	be 	futile. 	San Mateo County Community 	College
District 	(6/8/79) 	PERB 	Decision No. 	94.
Derivative Violations
PERB 	has 	found 	that 	conduct 	violating 	section 	3543.5(c) 	is
concurrently 	a 	violation 	of 	section 	3543.5(b) 	by 	denying 	the
Association 	its 	statutory 	right 	as 	an 	exclusive 	representative
to 	represent 	union 	members 	in 	their 	employment 	relations. 	It
is 	further 	found 	the 	failure 	to 	meet 	and 	negotiate 	interferes
with 	employees 	because 	of 	their 	exercise 	of 	representational
rights 	in 	violation 	of 	section 	3543.5(a). 	San 	Francisco
Community College 	District 	(10/12/79) 	PERB 	Decision No. 	105.
The 	Association's 	alleged 	violation 	of 	section 	3543.S(e),
is 	dismissed 	for 	lack 	of 	proof.
REMEDY
Section 	3541.S(c) 	of 	the 	Act 	provides:
The 	Board 	shall 	have 	the 	power 	to 	issue 	a
decision 	and 	order 	directing 	an 	offending
party 	to 	cease 	and 	desist 	from 	the 	unfair
practice 	and 	to 	take 	such 	affirmative
action 	••• 	as 	will 	affectuate 	the 	policies
of 	this 	chapter.
In 	its 	closing 	brief 	the 	Association 	has 	indicated 	that
subsequent 	to 	the 	hearing 	the 	parties 	have 	negotiated 	and
21

reached 	agreement 	upon 	implementation 	of 	the 	Blue 	Shield 	health
insurance 	plan. 	The 	remedy 	sought 	by 	the 	Association 	is
limited 	to 	the 	issuance 	and 	posting 	of 	an 	appropriate 	cease 	and
desist 	order. 	Therefore 	the 	appropriate 	remedy 	is 	a 	cease 	and
desist 	order 	directed 	against 	the 	District. 	It 	is 	also
appropriate 	to 	order 	the 	District 	to 	post 	the 	attached 	notice
on 	appropriate 	bulletin 	boards 	incorporating 	the 	terms 	of 	the
order. 	The 	notice 	should 	be 	subscribed 	by 	an 	authorized 	agent
of 	the 	District 	indicating 	that 	it 	will 	comply 	with 	the 	terms
thereof. 	The 	notice 	shall 	not 	be 	reduced 	in 	size. 	Posting
will 	provide 	employees 	with 	notice 	that 	the 	District 	has 	acted
in 	an 	unlawful 	manner 	and 	is 	being 	required 	to 	cease 	and 	desist
from 	this 	activity. 	It 	effectuates 	the 	purposes 	of 	the EERA
that 	employees 	be 	informed 	of 	the 	resolution 	of 	the 	controversy
and 	announces 	the 	District's 	readiness 	to 	comply 	with 	the 	order
of 	remedy. 	See 	Placerville Union 	School 	District 	(9/18/78)
PERB 	Decision No. 	69. 	In 	Pandol 	and 	Sons 	v. 	ALRA 	and 	UFW
(1979) 	98 	Cal.App. 	3rd 	580, 	587, 	the 	California District Court
of 	Appeal 	approved 	a 	posting 	requirement. 	The 	U.S. 	Supreme
Court 	approved 	a 	similar 	posting 	requirement 	in NLRB 	v. 	Express
Publishing Company 	(1941) 	312 U.S. 	426 	[8 	LRRM 	415].
PROPOSED ORDER
Upon 	the 	proposed 	foregoing 	findings 	of 	fact, 	conclusions
of 	law 	and 	the 	entire 	record 	of 	this 	case, 	it 	is 	hereby 	ordered
that 	the 	alleged 	violation 	of 	section 	3543.5(e) 	is 	DISMISSED.
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Upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law 	and
the 	entire 	record 	of 	this 	case, 	and 	pursuant 	to Government 	Code
section 	3541.S(c) 	of 	the 	Educational Employment 	Relations Act,
it 	is 	hereby 	ordered 	that 	the 	Palo Verde 	Unified 	School
District, 	board 	of 	trustees, 	superintendent 	and 	their
respective 	agents 	shall:
a. 	CEASE AND DESIST 	FROM:
(1) 	Failing 	and 	refusing 	to 	meet 	and 	negotiate 	in
good 	faith 	by making 	unilateral 	changes 	in 	the 	identity 	of
the 	health 	insurance 	carrier 	for 	employees 	within 	the
negotiating 	unit;
(2) 	Denying 	to 	Palo Verde 	Teachers Association,
CTA/NEA 	rights 	guaranteed 	by 	the 	Educational Employment
Relations Act 	including 	the 	right 	to 	represent 	its 	members;
and
(3) 	Interfering 	with 	employees 	because 	of 	the
exercise 	of 	rights 	guaranteed 	by 	the 	Educational Employment
Relations 	Act.
b. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION 	WHICH 	IS
NECESSARY TO EFFECTUATE 	THE POLICIES 	OF THE EDUCATIONAL
EMPLOYMENT 	RELATIONS 	ACT:
(1) 	Within 	seven 	(7) 	workdays 	after 	the 	date 	of
service 	of 	a 	final 	decision 	in 	this 	matter, 	post 	at 	all 	work
locations 	where 	notices 	to 	employees 	customarily 	are 	posted,
copies 	of 	the 	notice 	attached 	as 	an 	appendix 	hereto, 	signed 	by
an 	authorized 	agent 	of 	the 	employer. 	Such 	posting 	shall 	be
23

maintained 	for 	a 	period 	of 	thirty 	(30) 	consecutive 	workdays.
Reasonable 	steps 	shall 	be 	taken 	to 	ensure 	that 	the 	notices 	are
not 	altered, 	reduced 	in 	size, 	defaced 	or 	covered 	with 	any 	other
material;
(2) 	Within 	twenty 	(20) 	consecutive 	workdays 	from
service 	of 	the 	final 	decision 	herein, 	notify 	the 	Los 	Angeles
Regional Director 	of 	the 	Public Employment 	Relations 	Board 	in
writing 	of 	what 	steps 	the 	employer 	has 	taken 	to 	comply with 	the
terms 	of 	this 	decision. 	Continue 	to 	report 	in 	writing 	to 	the
regional 	director 	thereafter 	as 	directed. 	The 	reports 	to 	the
regional 	director 	shall 	be 	served 	concurrently 	on 	the 	charging
party 	herein.
Pursuant 	to 	California Administrative 	Code, 	title 	8,
part 	III, 	section 	32305, 	this 	Proposed 	Decision 	and 	Order 	shall
become 	final 	on Au~ust 	2 	, 	1982, 	unless 	a 	party 	files 	a
timely 	statement 	of 	exceptions. 	In 	accordance 	with 	the 	rules,
the 	statement 	of 	exceptions 	should 	identify 	by 	page 	citation 	or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See 	California Administrative 	Code, 	title 	8,
part 	III, 	section 	32300. 	Such 	statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	executive
assistant 	to 	the 	Board 	at 	the 	headquarters 	office 	of 	the 	Public
Employment 	Relations 	Board 	in Sacramento 	before 	the 	close 	of
business 	(5:00 	p.m.) 	on 	August 	2 	, 	1982, 	in 	order 	to 	be
timely 	filed. 	See 	California Administrative 	Code, 	title 	8,
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part III, section 32135. Any statement of exceptions and
supporting brief must be served concurrently with its filing
upon each party to this proceeding. Proof of service shall be
filed with the Board itself. See California Administrative
Code, title 8, part III, section 32300 and 32305 as amended.
Dated: July 12, 1982
Terryi lliman
Administrative Law Judge
25